Alongside the various nonsensical efforts to convince people that KSM is too scary to be put in trial, the right objects to bringing him to justice on the grounds that this represents a problematic "law enforcement" approach to terrorism. I think it's pretty clear that international terrorism has some dimensions that go well-beyond ordinary law enforcement, but if you have to put the whole thing in either the "crime" box or the "war" box, there's a pretty strong case for erring on the side of crime.
In political terms, the right likes the war idea because it involves taking terrorism more "seriously." But in doing so, you partake of way too much of the terrorists' narrative about themselves. It's their conceit, after all, that blowing up a bomb in a train station and killing a few hundred random commuters is an act of war. And war is a socially sanctioned form of activity, generally held to be a legally and morally acceptable framework in which to kill people. What we want to say, however, is that this sporadic commuter-killing isn't a kind of war, it's an act of murder. To be sure, not an ordinary murder--a mass murder--but nonetheless murder. It's true that if al-Qaeda were something like the "blowing up train stations" arm of a major country with which we were otherwise at war, it might make the most sense to think of al-Qaeda as fitting in with spies and saboteurs; criminal adjuncts to a warrior enterprise.
In terms of the risk they pose to Americans, people like Khalid Sheikh Muhammed are closer to a drug lord than an enemy general, and treating him like a criminal rather than a terrifying military genius denies him a valuable propaganda tool. We have tools for dealing with organized crime. Perhaps that's a more useful model than the Nuremburg Trials.
On the other hand, it seems like there are a lot of problems the civilian model just isn't set up to handle. Was KSM Mirandized? Did the people who captured him have a warrant for any evidence they secured at the time? How do we subpoena witnesses from other countries? Were any wiretaps obtained in accordance with the US rules of evidence? Do we grant him the right to confront his accuser if doing so would compromise other US operations, or intelligence methods? His right to a speedy trial has already been badly compromised--do we let him go? What's the statute of limitations on being a terrorist kingpin?
The answer is to let KSM go because we violated his Constitutional rights.
He has nowhere to go. Which country will accept him? He should be given a green card.
We should keep him in a safe house for the rest of his life, with all the amenities of course. Also I think the ACLU should file a $500 million wrongful imprisonment lawsuit against the Federal government AND George W Bush for torture.
Yes! He should be released in NYC. His release should be well-publicized, with posters pasted all over the city bearing his face and a stern admonishment against vigilante action.
I agree. In the words of James Mason (North by Northwest) Let him go "from a great height, over water."
If you treat Terror like a crime, then you have to try to arrest terrorists.
If you treat Terror like War, then you kill everyone who doesn't surrender completely.
What patriots of Western Civilization want is dead jihadists and an end to nihilist Islamism. What Yglesias and the rest of the Left and Environmental movement want is an end to Western Civilization. They've been aiming for the same goal for the past 150 years, and their shared hatred of modernity is what has allied them with Islamists against the rights of women and gays to life. This includes nearly all "Feminists" and "Gay Rights" people.
See the abuse that Peter Tatchell gets for noticing that Iran is rather less friendly to gays than Israel and Republicans.
The one decent thing is that the nihilists predominantly live in the major targets for Islamist terror and nuclear weapons. They'll get the annihilation they so desire just before the Islamists get their nukes returned with usurious interest.
Wrong, it's BushCo that wants to end Western Civilization through their torture/murder regime. We are country of laws and due-process. You kill that, and you've killed THE BEST of our society! Try Bush/Cheney for war crimes and torture!
Dude just Godwin yourself out and be done with it. I know you want too.
Keep trying. Some day you might be half as good as blighter.
One problem with the law enforcement approach you left out is that it is almost totally reactive. We cannot investigate, let alone imprison or kill a criminal for holding radical beliefs. Law enforcement only works with specific deterrence after a crime has been committed - and often with these jihadis they aren't even alive to put in jail. General deterrence won't work either given their beliefs. It is behavior that cannot be ameliorated in terms of general and specific deterrence and therefor is not amenable to law enforcement as a solution. Not without destroying a lot of civil rights we want in our criminal justice system. Looking at it through a war paradigm allows us to keep our criminal justice system rights intact. We are either going to fail at preventing terrorists acts a lot more or screw up our justice system.
The other thing about this that strikes me as wrong is that who really believes that OBL etc. looks at KSM's trial and says, "Wow - I am not really a Soldier of God - I am just a punk criminal." They just see it as evidence of the weakness and decadence of the West. We are the weak horse. The paper tiger. We can be moved from war, to crime to finally acceptance. I think this is similar to when anti-War types try to claim that leaving Iraq won’t be seen as a defeat because they put some other label on it. No one but them (and not even them if they weren’t pushing a P.R. move) actually would see it that way. No one will really look at the KSM trial as some sort of diminishment of AQ’s status. It will be seen just as a diminishment of our appetite to confront the issue or stomach for the hard choices one has to make. The only people who may be swayed by this to our benefit in a realpolitik way is the European left and I am not going to hold my breath that delegitimizing the War on Terror by recasting it as a criminal matter will lead to greater help or cooperation. Anyone here think this will lead to more NATO help in Afghanistan? Greater intelligence sharing?
Finally, why are only some of these guys being put into civilian courts? If military tribunals are show trials then they all should have civilian trials according to the moral logic of the Obama administration. These seem like Potemkin trials or show trials to prove our moral bonafides – but by only doing some of them it actually seems to do the opposite to me. It delegitimizes military courts and therefore makes all the other people we are holding seem like political prisoners of an unjust regime.
We can be moved from war, to crime to finally acceptance.
If we are no longer outraged and inflamed - i.e., terrified, it's no longer terrorism.
Do yoyu want to live in a country where the citizenry just sighs and says, "What are you gonna do?" when someone kills masses of their fellow citizens?
Sheesh. It was the conceit of the Nazis that killing Jews and stealing their possessions was an act of war against the international Jewish conspiracy. I don't think any of us view the Holocaust as a socially sanctioned form of war. That doesn't mean that we should or did view it as an ordinary crime. We instead convicted them in war trials that lacked basic protections for the (horribly, horribly guilty) defendants and had predetermined outcomes.
Except, of course, for the fact that some defendants were acquitted. So much for "pre-determined outcomes".
I've heard Megan talk before about the Nuremberg trials as show trials. But that's not accurate. Criticism of Nuremberg focuses on the passing of a lot of retroactive legislation before the trials, not on the trials themselves.
I have heard it suggested that admiralty law provides an effective platform for trying terrorist suspects. Basically, we have a framework originally for trying pirates and terrorists are similar in many respects(e.g., only loosely affiliated with a country, attacks against citizens of several countries.) Is their any lawyers here who know enough about this subject to give an opinion?
I am also a little aghast at looking for the silver lining in thinking of mass murder as merely criminal. There is something stomach churning about trying to make mass murder more normative. Yglesias really lives in opposite land from me. He seems to think that the war paradigm makes their behavior more acceptable. That seems Orwellianly wrong to me. I think it may be becuase on some level he sees all wars as wrong - therefore their unjust war is no worse than our just war in defense. If our war is acceptable then theirs must be too. His belief is foolsih and immoral.
Yglesias is saying that if we declare War, then we are, by definition, making turning the bombers into Warriors. Why give them that power?
We are not giving them that power. We are recognizing reality. They took that power through 3000 corpses and a smoking hole where the World Trade Towers once stood. It is interesting that those who prefer a criminal justice/legal framework think that applying new labels can change reality to a much larger degree than I think is either possible or wise. Throughout the '90s we refused to acknowledge that these folks were at war with us despite repeated murderous attacks - it did not make them stop. Do you think that 9/11 would have been more or less likely if we had declared War (with actions in line with that declaration) after the Cole or Embassy attacks? Why do we think people willing to commit suicide to kill us are that amenable to what labels we use?
Do you think that 9/11 would have been more or less likely if we had declared War (with actions in line with that declaration) after the Cole or Embassy attacks?
Declaring "War" didn't help with drugs, poverty, or whatever else we've used the rhetorical device on.
But we do look at acts of mass murder as merely criminal. Was the Virginia Tech shooting an act of war?
You are ignoring the motivation of the perpetrators, and their propensity to strike again (or not, in the case of the Virginia Tech shooter).
Of course these guys are "warriors" - okay, they are Jihad Warriors, engaged in the unholiest of wars, but their conduct is in its essentials, warrior-like. They are not exactly brave in the western sense, but they are not exactly cowards either (I at least partially agree with Bill Mahr here). I think it was Kagan who pointed out that we have soldiers, some of whom are also warriors, whereas while our enemies are warriors (barbarian warriors at that), they are by no means soldiers.
Re: I am also a little aghast at looking for the silver lining in thinking of mass murder as merely criminal.
What about Tim McVeigh then? Had he not been quickly apprehended I can easily see him and his fellow travellers as willing to pull off further attacks like the OKC bombing. Yet we tried him in the normal manner.
In addition, no one is proposing abandoning military action as needed. This isn't a binary choice. We're just putting war criminals on trial. No one is suggesting that we should have sent the NYPD to Afghanistan rather than US Army and allies.
Finally, there's ample precedent for sending in the military to take out criminal sorts of who the resources of a state at their disposal. In fact, a very clear precedent was set by George HW Bush when he sent the troops to despose Manuel Noriega and haul him bac to Miami for trial-- in a civilian court.
Replying to Jon:
Reasons why McVeigh and KSM are different and require different responses:
-Although there were others that supported McVeigh, most of them were more talkers than doers, and almost all were horrified by the death toll of his attack, especially the daycare. Once he and Nichols were arrested, his particular group no longer posed a threat. KSM's followers / trainees think that 9/11 was a nice first step, and will have to suffice until they can acquire nukes.
-McVeigh was an American citizen - that still means something.
-McVeigh was arrested by domestic law enforcement, and was given constitutional protections from the start. KSM's apprehension took place in the "wild east" of Pakistan, was a joint effort by the CIA and the notoriously vicious Pakistani security services.
KSM hardly fits this paradigm. The kind of horror we feel at Virginia Tech is adequately handled on a governmental level by the criminal justice system. I am not concerned that the moral outrage or ability to respond to other possible events like Verginia tech is diminished by it being handled by the courts. I cannot see how this isn't a likely danger in the case of KSM et al.
The KSM trial is a whole other ball of wax. We are dealing with representatives of a well funded strain of one of the world's great religions which has had some level of conflict with the west for centuries. Its adherents are spread across the globe where our criminal justice system has no standing. They have sympathizers running different nation states. I don't think our criminal justice system is able to handle this effectively. To the extent the criminal justice system ever has tried to handle something similiar it has been militarized and done so poorly. Are you a big fan of the War on Drugs?
One of the problems with looking at this through a criminal framework is that part of the motivation to do so is an attempt to ignore the larger conflict. It seems like an attempt to wish a problem away by changing its name. Good luck with that. As I said previously, I think that this will either lead to a combination of a less effective national security and a warping of our criminal justice system. Neither of which are at issue with the Virgina Tech shooting.
Probably more on point to your question - I am not worried about fighting the ideology behind the Virginia Tech shooting. The criminal justice system is not equiped to deal with the moral argument amed and acted upon by Islamists. We are not in a moral/civilizational struggle with people like the Virginia Tech shooter. Declaring war on AQ etc. acknowledges this. Putting the whole thing in a criminal court context denies this and diminishes the moral outrage of what happened on 9/11.
But we do look at acts of mass murder as merely criminal. Was the Virginia Tech shooting an act of war?
Oh please. This kind of sophistry is just silly.
The 9/11 perps were part of a large, well-organized, well funded organization that saw what they did as part of a broader struggle. There was some reason, at the time, to believe that they may have had either state sponsorship or at least some help from a foreign government. They were foreign nationals who entered the US with the express purpose of committing an act of terrorism.
The VT gunman was a lone whacko.
Well organized? What group are we talking about here? I'm not even sure I'd buy into the well funded part.
If you want to argue that you can fight AQ on a war context, I'm almost willing to go along with you, but look at the Fort Hood shooting. You essentially have a VT-style lone whacko driven by Islamist ideology. We've already proven our capability to break up and disrupt organizations; it's groups that lack rigid hierarchies that are giving us so many problems.
The problem with trying KSM and others like him, is that no matter what the outcome, we lose. First off, there is no way a trial like this could be anything but a media circus and a free propaganda platform for some truly vile views, unless it is kept closed from the media. In which case the trial will be seen as rigged. Second, even if we somehow resolve all the conflicting technical difficulties of giving KSM a fair civic trial (would anyone on earth really believe that we found 12 unbiased jurors?), does anyone on earth believe that we would release him if he were acquitted? Releasing him after any sort of trial would be a huge propaganda defeat for us, and everyone knows it. So any conviction will be regarded as a foregone conclusion, and hence a smaller propaganda defeat.
In a nutshell, if we acquit him, the story will not be that we have honored our principals, it will be that KSM has defeated The Great Satan at his own game. If we convict him, it will seen as a cheap and insulting show trial.
First off, there is no way a trial like this could be anything but a media circus and a free propaganda platform for some truly vile views, unless it is kept closed from the media.
Really? You think KSM is a threat with the microphone?
I, for one, believe that our worldview would prevail in the "marketplace of ideas." I welcome a public debate between the ideals of Western society - fairness, rule of law, and due process, as visibly demonstrated by the trial itself - and KSM's jihadist nonsense.
The jihadists say our values are a sham, that we don't practice what we preach. The point of terrorism is to get us to prove their point. It's halfway reasonable to be afraid of their bombs (though mosquitos are much more dangerous). But it's ridiculous to be afraid that their rhetoric is better than ours.
We need to live our values, and let the other side expose the emptiness of its vision. THIS is How We Win.
I get your point, but I understand what Drogo Bruce is saying too. I suspect the coverage on Al-Jazeera etc. would be pretty favorable to KSM's ranting. So it might have the results of giving him more recruits in the Arab world even if he looks like a nutjob outside of it.
Possibly. Of course, the guys locked in the hole at Abu Gharib, Bagram, and Gitmo have served that purpose pretty well without saying a word, so I'm willing to try something else.
@DB Cooper,
Have they?
Upon what assumptions are you basing that assessment? I've seen nothing except the assertions of those trying to undermine political support for killing Islamic terrorists.
Strip clubs and bongs have created far more terrorists than Gitmo. That's in the terrorists own words.
Part of their vision, of course, is that our values are weak and decadent and doomed to failure under the righteous wrath of God.
When we let them attack us and then give them a podium to say to their supporters and those whom they seek to influence "Hey! We were right! Just look! I have attacked them with impunity! They actually are too weak to live!" we don't prove to their audience that we are such noble, nice people that our values are unconquerable, we rather prove that we might actually be too weak to survive, or at the very least that we can be attacked with impunity.
If we let him go, as our criminal standards would seem to clearly indicate we must (at the very least, we should come up with some kind of national security court of the sort they have in Britain to deal with some of the intelligence & other issues in a sensible way without tainting our criminal process with bad precedent or tainting this trial likewise), then we have effectively conclusively proven his theory that the West is weak and cannot defend itself.
Do you honestly think some disaffected youth considering initiating a terrorist plot will see a release of KSM and think "Gosh, I was going to blow up these godless heathens but now I see that they are actually very comitted to the delusional 'rights' their godlessness has led them into, so I guess I won't! 'Live and let live', after all, as my ideology says is the lure of satan..."
Really? You think KSM is a threat with the microphone?
No, but conversely, do you really think we stand to gain much?
Those who already side with us will continue to do so, as will those who side with KSM.
Do you really think some suicide bomber out there is going to have an epiphany where he realizes he was wrong all along and what a great place the USA is?
Really? You think KSM is a threat with the microphone?
Absolutely. "The pen is mightier than the sword" isn't just a cliche, it's an important truth. All over the world there are a number of damaged men steeped in poisonous versions of Islam just trembling on the edge of becoming jihadis. One charismatic warrior, bearding the lion in his den as it were, would push many of them over that edge.
I, for one, believe that our worldview would prevail in the "marketplace of ideas." I welcome a public debate between the ideals of Western society - fairness, rule of law, and due process, as visibly demonstrated by the trial itself - and KSM's jihadist nonsense.
As do I, but we'll never get it. Debate requires two willing participants. Nobody on "the other side" is willing to really debate the issue in an intelligent manner.
But not releasing him isn't an attack against, a problem for, or a violation of, our system of justice. He is an enemy combatant who can legitimately be held for the duration, just as we held German prisoners until the end of WWII. He is also a criminal, and can be tried for his crimes. Trying a solider in war just for fighting you is a violation of his rights under the Geneva convention (if there is any doubt that the person in question is a soldier, spy, or other agent for the enemy you can have a tribunal to determine that but you the tribunal isn't trying him for crimes), but KSM isn't doesn't warrant POW status (he doesn't meet the requirements under international conventions) and even if he was properly a POW his methods (the methods he ordered, as he didn't conduct the ops himself), are war crimes and both illegal combatants and POW's can be tried for war crimes.
If the captured combatant is tried and convicted for war crimes then he's held to the end of his sentence and to the end of the war, whichever comes later (assuming the sentence isn't death, then he's just held to his execution). If he's found innocent, then he's just held for the duration.
The problem with treating the War on (some) Terror as a War is that we then must (under international law) treat people captured on battlefields as Prisoners of War.
Actually that could work as long we try all of those who were involved in actual terrorist acts as war criminals. Of course, this isn't easy to figure out. Is it all AQ or just the subset that planned or carried out attacks.
Missing question mark at the end of my last sentence.
That's a feature, if you apply the Geneva Conventions as written and not the nihilistic Leftist version.
Anyone caught out of uniform is an illegal combatant and gets summary execution. They are outside the laws of war and merit nothing but death as and when we see fit.
I'm going to take a wild guess and say that that's not what you have in mind.
This is simply a continuation of the anti-imperialist struggles for many people. Now, as then, they are conspiring to aid and abet the other side. Now, as then, they will get away with crimes against humanity - no one got a rope after 89, despite the vast numbers who merited one.
No you don't. You only have to treat them as POW's if they fall under the terms below -
----
Geneva Convention relative to the Treatment of Prisoners of War
...
Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
5. Members of crews [of civil ships and aircraft], who do not benefit by more favorable treatment under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country...
http://www1.umn.edu/humanrts/instree/y3gctpw.htm
The problem with the crime model of terrorism treatment is huge. Here is one small aspect to think about. What happens if KSM is put on trial and acquitted. In that unlikely event, would we free a man who clearly represents a threat to our country? If so, we are fools. If we wouldn't, then aren't we just putting on a show trial like the Soviets did?
In the war model, you can keep ECs locked up for as long as the war is going on. That is what you should do with people who are a threat to your country.
I think one of the administration's lawyers has already floated the notion that if KSM were acquitted, he would still be detained under laws of war. I don't know how far that information is spread, but it won't take much for doubters to conclude the game is rigged.
He should be returned to Pakistan since he wasn't properly extradited from there in the first place. We can trust Pakistan to keep an eye on him.
This was intended to be a reply to the first comment set.
It seems like the war/crime division depends on what form the terrorist threat takes. Purely domestic terrorists like McVeigh or eco-terrorists force a law enforcement paradigm. You can only catch them when they act or if you get a tip that their ready to act. So "war" is useless in this case, because it would amount to a civil war. Purely state sponsored terrorists demand a war paradigm(The bombing of Libya for example.) Because they are either war by another means or an adjunct to a conventional war, the response shouldn't be substantially different than it would be if enemy missiles hit Los Angeles. AQ before 9/11 was kind of a hybrid. It had a very close relationship with the government of Afghanistan, but it drew a lot of support in personel and finances from a variety of other countries. The Afghan war was the logical war portion of the response, but we're obviously still figuring out the law enforcement portion.
It's important to note what Matt Y has forgotten - KSM was also the mastermind behind the '93 WTC bombing. Using conventional law enforcement techniques, we didn't even know who he was until after 9/11. By which time he had masterminded 9/11.
Yglesias is arguing that we use the one approach we KNOW doesn't work to prevent terrorism.
The article is brief and broad, but I didn't read it to be talking about preventing terrorism, as much as responding to it.
Preventing terror is, regardless of your response paradigm, an intelligence task that combines military, law enforcement, and traditional foreign intelligence-gathering (i.e. CIA) responsibilities. Or so the 9/11 Commission told us.
To me a lot of this is academic. Congress has already passed a law authorizing the use of military force against the people responsible for 9-11. I don't believe Obama agrees with some of his supporters that there is no war against al-Qaeda or the Taliban. I don't believe the Supreme Court has evidenced any problem with the concept that one can go to war against an NGO, whether it be the Barbary Pirates or al-Qaeda.
Obama is electing not to use military authority entrusted to him, which is his discretion, but it's highly problematic to do so in the fourth quarter after KSM's been the subject of military force for several years. Maybe there is an argument that KSM should have been mirandized, extradited to his home country and put on trial there, but that is an argument long past it's expiration date. And Obama evidenced no qualms about military tribunals prior to his election.
"treating him like a criminal rather than a terrifying military genius denies him a valuable propaganda tool"
Possibly. Or possibly giving him all of the rights that we give ordinary criminals reinforces his entire theory of the West as too decadent and weak to survive and thus confirms the correctness of his position to the many millions he seeks to influence.
The theory there being that he says we're too weak to actually win the fight against them; we're maybe even too weak to even fight it. If we decide to let him go because of idiotic application of evidence rules, he's proven right. If we decide to keep him imprisoned but let his lawyers aid him in spreading his message through the court and through personal communications, he's proven right. Pretty much any conceivable treatment of him in the civilian trial system proves him right.
I would posit that for the millions of folk he's trying to sway to his side, treating him very nicely does not actually "deny him" a "propoganda tool" it confirms every bit of his propoganda.
This is all, by the way, not purely a matter of theoretical musing. We have evidence of what happens when you treat international terrorists as domestic criminals: the World Trade Center bombing case. The "blind-sheik" was sentenced to jail and had his communication limited. His lawyer, progressive defender of the weak and defenseless that she is, aided him in circumventing those limitations and he continued to spread his words and even plan other actions while in our jail.
Hurrah for us, right? All the potential terrorists saw how brilliantly gentle & humane we are and decided to never attack us because we're just too darn nice. Or at least that's what your and Matt's theory would seem to indicate must have happened.
Relatedly, that's one of the big reasons I think this whole trial is a hugely bad idea.
It's not that "New York is too weak too handle having it all dredged up again!", nah, New Yorkers are tough, they'll be fine. It's not that I'm worried that the average US citizen will be swayed to jihad, I fully expect the craziness that comes out of his mouth will completely reinforce the sensible conclusion that these are evil men who feel they are compelled by God to destroy innocent life. It will be repulsive to all civilized people.
But what of the millions of uncivilized people? The millions he's trying to get on his side? They'll get to see him saying "Look at me! I tell you they are too weak to win! I have attacked them most grievously and they can't even stop me from telling you how weak they are! What more proof do you need that I am right and God is on my side??"
When he's locked in Gitmo, the millions he seeks to influence get to hear that if you attack the US you disappear and then there are rumors about what's happening to you, but no one really knows what it is.
When he's on trial, he gets to tell those people not to fear attacking the US, that the West is every bit as soft & easy a target as was predicted. If you fail, they will treat you well. If you succeed, they will treat you well. Attack them again and again! We cannot help but prevail against such weak-willed enemies!
I would posit that for the millions of folk he's trying to sway to his side, treating him very nicely does not actually "deny him" a "propoganda tool" it confirms every bit of his propoganda.
...
Hurrah for us, right? All the potential terrorists saw how brilliantly gentle & humane we are and decided to never attack us because we're just too darn nice. Or at least that's what your and Matt's theory would seem to indicate must have happened.
Again, theory. We've tried EXACTLY THE OPPOSITE course already - waterboarding, extraordinary rendition, etc. etc., and it helped with their recruitment.
It's quite possible that EVERYTHING we do works as Islamist recruitment. In which case, we're screwed, regardless of what we do. But I think we have to let the "Arab street" make that decision, and if we have to err, err on the side of our values, and what doesn't hurt the few Muslim friends we do have.
So we tried the "treat terrorism as a criminal problem" theory and found it resulted in escalating attacks over a series of years that culminated in an attack brutal enough that popular opinion would not allow us to stop at anything short of a full-scale military assault against those who had aided the attackers.
Then, as you say, we tried the "treat terrorism as a war problem" and it resulted in no significant attacks against our country but a steady feed of terrorism recruits into the battlefields where our troops could fight them more-or-less directly. This strategy has been so successful that our domestic population is willing to once again treat terrorism as a criminal problem as it seems once again to be a marginal, manageable problem.
And the lesson you draw from this is that since terrorists are always going to get recruits, we should go with the more high-minded strategy, even if that results in more direct attacks against us?
If you honestly agree with KSM et al that Western Civilization is ultimately screwed, why would you care whether it obeys its ideals as it dies? For the purity of the thing? The romanticism of true martyrhood? "My civilization may have died, but at least it died with honor!" that kind of thing?
In what way would it violate our values if KSM was tried through the military tribunal that was finally set up?
But I think we have to let the "Arab street" make that decision, and if we have to err, err on the side of our values, and what doesn't hurt the few Muslim friends we do have.
OK, they doubtlessly suspect this is a show trial.
Outcome #1, he's convicted - confirms their suspicions.
Outcome #2, he is acquitted - we let him go? right. We would find some excuse to detain him.
How does this trial stand to help us with the "Arab Street"?
Yeah, bu we have to think of the nuanced differences contained within.
If we goof things up, we'll have really angry "mass murderers" after us. As we know, permanent anger can lead to stress, headaches, hypertension, obesity, and chemical abuse. This is not something our government should be subjecting others to endure -- and it raises the cost of our health care.
If we don't make them really mad, we'll have healthier, more well-balanced mass murderers after us.
Perhaps if we offer them honorary citizenship we can bring those blood pressure and cholesterol levels even further.
Re: Or possibly giving him all of the rights that we give ordinary criminals reinforces his entire theory of the West as too decadent and weak to survive and thus confirms the correctness of his position to the many millions he seeks to influence.
I really can't follow this. Do you really think that our rights and freedoms, that our entire system of justice-- portions of which stretch back to the heydey of Rome, and are imbued with the rough but fair instincts of the Anglo-Saxons and the mitigating mercies of Christinity-- that this system is evidence of decadence and frailty?
WTF?
If you are really advocating that view then I assume you're a fan of some sort of arbitary, tyrannical "justice" of the sort practiced by Comrade Stalin and certain other famous leaders of the 20th century.
Sorry, but I see this as a statement of our strength, not of any weakness, and I have trouble wrapping my mind around the vews of someone who sees it otherwise.
First, just as a general historical question, in all of those many years of anglo-saxon, roman & christian history, can you name me an example in which these rights which are, I agree, for the most part, both a sign and source of strength have been extended to non-citizens whose only connection with the polity recognizing those rights was a deep desire to destroy it demonstrated by actually blowing part of it up? Or were all those countries secret totalitarian stalinists because they felt that defending themselves against foreign enemies was more important than bending over backwards to extend to every enemy the deepest rights they had secured for themselves?
Quite aside from that, in the case of KSM we have very clearly at the very least violated some of the more recent innovations in criminal rights. There is no good chain of evidence. He almost certainly was not mirandized. We might be able to fill him in on all of our intelligence but it probably would be about as advisable as when we did the same for the World Trade Center bombers and the information was in Al Queda's hands within days, letting them know precisely what parts of their organization were compromised.
So to your mind we must, by our signs of strength and in keeping with our ancient rights, release this man. And you feel that in the middle east this will be viewed as a sign of how incredibly strong the West is? Look at them, they get attacked and let the attackers go free because they are so beholden to their strong ancient rights?
You don't think that just maybe an immam or two will make the argument that this is all part of God's plan, that he has weakened the great satan to the point where it won't fight back even to the boldest of attacks? That this indicates the time of victory is at hand and all manner of attacks must be made? Really?
And, of course, in all future wars we must be sure to mirandize all potential prisoners, maintain elaborate and effective chains of evidence for all potential evidence, force soldiers to come home to appear as witnesses at the beck of our enemies, share our intelligence with those same enemies, and release those enemies for whom any of these actions has not been fully complied with. We must wage war this way or we are Stalinists, yes?
On the issue of Miranda rights, this is not an issue. The US Constitution only applies on US Soil. KSM was arrested by Pakistani forces in Pakistan. There is no expectation that they would follow US law. KSM will not get off on a constitutional technicality.
Meanwhile, evidence gained by torture will not be admissible, but I have to believe that there's plenty of non-compromised evidence fo the government to build an air-tight case. Acquital is about as likely as my becoming pope.
Now as for this:
"You don't think that just maybe an immam or two will make the argument that this is all part of God's plan, that he has weakened the great satan to the point where it won't fight back even to the boldest of attacks?"
An imam would have to be senile, or living on Pluto for the last eight years, to make that argument. Not fight back? Let's see: we've had two wars, spent a trillion dollars, killed upwards to a hundred thousand or more people. Why do you (and this is really about you I suspect) say we have
"not fought back". Short of playing Genghis Khan with nukes we could not have fought back more than we have.
And as I posted above, this is not an either/or choice. Our response to terrorism can (and does and should) include both military force as needed, and justice. One does not preclude or contradict the other.
And though I may be going far afield by citing fanatasy literature, toward the end of the Lord of the Rings Aragorn's army marches up to the Black Gate or Mordor and demands that Sauron come forth-- that justice might be done on him-- a cruel abd depraved god. It is the tradition of our civilziation (tradition = something conservatives ought to care about conserving) that justice always has the last word, not brute force. Let the barbarians reflect on that and be enlightened-- or not. This has become our war, not theirs and we will impose justice not blind vengence or the arbitrary force of tyrants.
What problem do you have with justice?
Well, I guess we've progressed. You're no longer calling me a Stalinist, instead you're insisting that we must let reality reflect our noble ideals as expressed in The Lord of the Rings.
I agree that we've spent the last eight years demonstrating that we will not take attacks lying down and fighting back hard. And I think that was a good thing. I think this shift to according our enemies wherever they are and whoever they are full constitutional rights represents -- and is intended to represent -- a reversal of that policy. I think our enemies will correctly identify that reversal and see it as confirmation of what they see as the long-term trend towards dominance of radical Islam over a dying West. They view the last 8 years as an abberation, as the defeated giant swinging his paw a few times even as terminal lethargy overtakes him. This move on our part will convince them they are right.
As to whether trying KSM in civilian court in NYC means that he will not be released on constitutional technicalities, I think you are just flat wrong on that point. I agree that the US Constitution does not and can not apply on foreign soil and thus the fact that he was not apprehended with anything like the proper procedure for US criminals should not matter.
I do not think the court will see it that way. And, in all fairness, there is no real way they could see it that way. The US justice system is set up to operate within the realm of US constitutional law. There is no precedent they can point to to let themselves just sort of ignore inconvient bits and pieces here or there and proceed with the trial anyways. If they do, it is no longer a "fair" trial. That is a huge part of the fundamental problem with bringing him here. There is simply no way to say, "we're going to give you all of these rights, but not all of those rights over there, because that would just be silly." It's an all-or-nothing game.
As to the oodles of non-torture evidence they have against him, I would imagine that letting him review that evidence would provide valuable insights into our intelligence capabilities against him and his cronies, information that would almost immediately find its way back to them, aiding them in their ongoing quest to cause us harm. There is, again, no way to prosecute someone in our justice system and keep that kind of information away from him, it violates all kinds of precedent and rules. This is why some countries (I mentioned Britain above) have separate courts for sensitive intelligence cases. We, for better or worse, do not. And there is simply no way for a run-of-the-mill civilian court to just decide on the fly to start throwing out inconvenient rules of evidence because they seem silly in this case. Again, that's not how the justice system works, nor how it could even concievably work and maintain itself.
Lastly, as to whether it's an either-or decision, it might not be if we had special courts to handle these kinds of special cases. (Or just decided to continue with the military tribunal system that was being developed to address exactly these sorts of concerns) but it is simply not the fact that you can prosecute a war against people and decide to treat some of them as criminals in your justice system and others not. Either the courts have jurisidiction, or they do not. If they do, then you are necessarily giving them the power to review and pass judgement on all of the methods you are using in the war, judgement over areas in which they lack the necessary resonsibility and expertise to act effectively.
I have nothing against justice. I think our system is a pretty good one for the purposes it has been developed for. That does not mean I think it can be applied willy-nilly to every problem in the world, even those for which it was not at all designed and to people who only wish its destruction. In fact, I think that will do nothing to aid in our protection and much to deteriorate the system's many good uses.
Regardless, we now get to see how it plays out. My guess is that it will be a show-trial, with no respect for traditional rights. Or perhaps it will be a real trial, in which case the fellow will almost certainly walk. Either way, it will be a disaster, but I'm sure you'll have some scene from the Dune books or some such that explains why it's actually our finest hour and those who disagree are as evil as the Harkonnen.
I guess at some point you get into semantics and definition.
Normally, you can, I dunno, identify some sort of motive in a crime. A jealous lover wants revenge. The mob wants money. Terrorists have motives too, of course. So do foreign governments.
At some point I think you have to look at the motive, what drives these people to action, and realize that there is something fundamentally different about what we loosely call criminals and what we loosely call terrorists.
We distinguish them with different words that reflect fundamentally different concepts. This is not an accident.
Islamic terrorists seem less interested in what we might call "criminal intent" and more interested in "geopolitical strategy", and I think that is what pushes them into a different category.
This trail could do irreversible harm to our entire criminal justice system and our civil rights.
If we give KSM a trial based on US Constitutional norms, we would have to find him not guilty. He was never Mirandized, never afforded council, he was physically interrogated, he was not taken into custody by civil law enforcement, there was no chain of custody and there was no chain of evidence. I could go on. He won't be able to examine the covert means used to identify and track him and he won't be able to cross examine the covert operatives who did likewise.
The big danger here is that instead of letting KSM go free, we will compromise our civil rights protections for the accused. The courts will be forced to use the trial to set precedents that can apply to any criminal case. Instead of making warfare more lawful as leftists imagine, we will make civil law more like marital law.
This will not end well. In the end, we will wish we never caught the bastard.
we will compromise our civil rights protections for the accused.
We already have. Look at what happened to Jose Padilla, before any evidence was presented to a jury.
I agree with shannolve that this is the bigger issue. There is enough flexibility in judicial procedural doctrine to harmonize the treatment KSM is going to receive with normal defendants. Johnny Pothead is the big loser here.
If people want to understand how this works, they should read Justice Scalia's dissent in Hamdi v. Rumsfeld. A lot of current Constitutional framework stem from a WWII case (Ex parte Quirin) in which a defensive Court rubber-stamped the U.S. army's execution of a U.S. citizen engaged in espionage without the benefits afforded under the Constitution. The SCOTUS refused to overturn it's caselaw and his endorsed the growth of an intermediate category of national security offenses that don't provide U.S. citizens their normal protections.
So, Afghanistan is a war, when we're fighting the Taliban that's a war, but if we capture any al Qaeda in the same neighborhood, that's law enforcement?
What about blowing up these guys with drones, as we've been doing? If you call that "law enforcement", it's extra-judicial execution, and it's a war crime in itself.
"Blow the bastard up" is not an option that police have.
So if we discover that, say, bin Laden is hiding out in a particular house in a village in Waziristan, we can't just blow him up, because that would be murder, since he's just a criminal now. Instead, we have to try to arrest him, right? Then we can shoot him if he shoots first. So we just send in two beat cops in a Crown Vic. Easy! When they turn up dead, we try again with special forces, except we tell them they can't shoot anybody unless they read him his rights first. Presumably he'll sit still and listen intently, and go along with the assumption that Americans have some business running around Waziristan enforcing our own laws there.
So yeah, it's regular old law enforcement, just like on Adam-12, except for the Blackhawks, the automatic weapons, the close air support, the body count (including civilians), and the jurisdiction thing.
Did Yglesias give an instant's thought to what this actually implies in terms of reality? Would he care if he had? Or is he solely concerned with justifying whatever random coin-flip the administration came up with about trying KSM? That's a rhetorical question.
But yeah, I mean, reality's a special case, right? Yglesias is an idea guy. More of a strategist, you might say. It's up to somebody else to get his hands dirty making it work.
So what happens if he is acquitted - do we just let him go? Obama has promised that KSM won't be released - but how can Obama really promise that? Once he is in the Federal court system, that decision is out of Obama's hands. Say he is acquitted - and then Obama orders him detained anyway - on what grounds? And wouldn't that do far more to make a mockery of the American justice system than anything Bush has been accused of? I guess you could ship him back to Pakistan to stand trial for Daniel Pearl's murder - but I can't believe that Pakistanis want all the associated problems that would result from trying a guy who is regarded as a superhero by tens of millions of their own citizens.
The only upside to this whole clusterf*ck is the salutary lesson to our troops in the field on the best way to handle these guys - two in the chest, and one in the head for insurance.
When in doubt: doubletap.
You're exactly right, of course. All this vaunted high-mindedness about treating combatants captured in wars as well as we treat ordinary criminals just ensures that more folk get summarily executed rather than captured. I, personally, don't think that's progress on human rights, but then I don't have Matt Y's high-minded ideals.
Also, if we continue down this road, how long until Obama gets brought up on war crime charges for repeatedly authorizing predator strikes that have killed innocent people in Pakistan, a country with which we are not at war under any definition, even the ones Matt Y. doesn't like...
Any post that starts out with the words "Matt Yglesias makes a good point" is sure to be one I disagree with. And this one doesn't disappoint.
How is a military attack on civilians not an act of war? Especially with the "warrish" intent?
As someone remarked above, there are long-standing international agreements that describe what acts of warfare are permissible, such as admiralty law and the Haag Conventions, the latter of which underlies the concept of "unlawful combatants." Those are the folks who lack military insignia and could be shot on sight pretty much. Talk about your effective prevention and deterrence.
If we treat international terrorism as a criminal matter, won't we have to become the de facto "world police"? You know, sending detectives around the globe to look for evidence, canvass the neighborhood for witnesses, make arrests, etc? Oh, and after a mass-casualty site has become the "scene of the crime," i.e. after thousands have been killed along with the suicide attackers.
It's wrong to say that we must choose between Crime and War models. There is a third choice; a better fit. It is not a new legal theory, but has existed since before the days of the Roman Republic at least, and probably before.
Terrorists are hostis humani generis - enemies of all mankind.
Another type of hostis humani generis is pirates. I will offer a quote from Wikipedia, and I think the application to terrorism becomes apparent:
The Admiralty Courts are a good building block for how to deal with terrorists. They have millenia of experience of dealing with activities that have occurred outside any jurisdiction, poor evidence gathering by US standards, etc. Our civilian Courts really aren't set up for this sort of thing.
Not that I would advocate that course, but the best solution is to shoot people like KSM on sight. The current situation could be argued infinitely in every direction, and is basically a lose/lose proposition. No matter how the US handles this, it will be seen as compromise or capitulation, set a precedent to be exploited, and become propaganda that even some reasonable people would believe.
You want to bet that that's not what's happening right now? A captured terrorist is nothing but downside.
This would seem to be fairly clear: if the terrorist is a US citizen, then they have their civil rights, all relevant laws apply, and it's a criminal matter.
If the terrorist is not a US citizen, and also not the uniformed military agent of a recognized country, a special set of rights, and limitations to those rights, needs to be codified and adhered to. One assumes the Geneva Conventions apply to the uniformed military agents of recognized countries.
The trick is to have this happen as a Constitutionally defined process, with debate, and written laws, and the ability to enforce them, which is not what we have now. The problem is that Bush et al short-circuited the process, which was not really necessary on more than a temporary basis.
I suppose that his defence lawyers will try to bring evidence of various terrorist atrocities supported by the USA. That would seem to be fair.
What I keep wondering about is whether they'll have to put the entire families of the jurors in the witness protection program for life. At the very least, the jurors and their families will be under constant threat throughout the trial, and it could be a long trial.
Grreat point. I hadn't thought of that. I sure hope none of my family in NY is unlucky enought to be called for jury duty in the case.
Or how they are going to find one that is impartial.
I would love to see the voir-dire.
After WW1, the Geneva discussions determined that a terrorist tries to provoke an over-reaction by the opposing forces. In order to prevent this, like pirates, they were to be summarily executed.
That certainly seems to be an applicable motive, not that that's pertinent in a criminal trial. I think that the Bush administration tried to tread too fine a line with the military commissions, but it is what we have.
Bringing these folks to New York poses grave risks for all the reasons mentioned above.
There is no inconsistency between being a terrorist and being a criminal. McVeigh was convicted of murdering over 100 people in Oklahoma City - should he not have been prosecuted as a criminal?
An important distinction that has been getting lost here is the distinction between detention and punishment. We punish criminals. We either detain warriors as POWS or kill them in battle. There is a moral logic to this: warriors are not criminals. They may be our enemies, but they are not acting in violation of any laws applicable to them. Thus, in wartime we are generally talking about detention, not punishment. We do not punish POWs, we detain them until the war is over. Punishment is meted out in courts martial only in a fairly small category of cases involving the commission of crimes on the battlefield, obviously not something that is at issue here.
It seems clear to me that the perpetrators of 9/11 should be punished as criminals, not detained as warriors. There is no need to proceed outside of normal criminal channels in order to carry out the punishment. If there were jurisdictional issues it might make sense to proceed before the ICC, but there are no such problems here.
To answer your specific questions:
1. I do not know if KSM was Mirandized. If he made statements while in custody without being Mirandized, they probably could not be introduced at trial, although they could be used in cross examination if KSM were to testify. Statements made under torture probably could not be used at all. In no event, however, would any of this be grounds for dismissal of charges. I assume that a bright lawyer like Eric Holder has thought of all this, and that the government has ample non-tainted evidence of guilt.
2. Evidence seized in violation of the Fourth Amendment would probably be inadmissible. However, the mere absence of a search warrant does not constitute a 4th Am. violation, as there are many, many exceptions to the "warrant preference" rule. Similarly, any wiretaps conducted in violation of US law would be inadmissible. Again, however, the law is a good deal more flexible than many people think, particularly where extra-territorial wiretaps are involved. This is would all only relate to the admissibility of the evidence, and would not be grounds for dismissing any charges. BTW, lest anyone be misled on the issue, the manner in which KSM was apprehended is irrelevant. Once he is in US jurisdiction, he can be tried, regardless of how he got there. (This is the "Ker-Frisbie" doctrine, based on two Supreme Court cases of those names).
3. There are a variety of mutual assistance treaties that enable the US gov't to compel the testimony of witness outside of the US, or otherwise subpoena evidence outside of the US. Obviously, if a witness is in a country that does not have such a treaty, it may be impossible to obtain his or her testimony. If the witness made statements, it is conceivable that the statements could be admissible under various exceptions to the hearsay rule.
4. Speedy trial rights kick in only after a defendant is indicted. Since KSM has not been indicted, there is no speedy trial issue. Pre-indictment delay violates the constitution only if there is some very specific prejudice resulting from the delay, and dismissal of cases on this ground are almost unheard of. "Prejudice" in this context has a specific, narrow meaning, requiring that something happened as a result of the delay that would make it virtually impossible for the defendant to defend himself. I'm not aware of anything like that here.
5. Since KSM would be charged with a capital offense, there is no statute of limitations under federal law.
If KSM is convicted, he will be subjected to the death penalty. I would think that this would be something that conservatives would be in favor of.
War and Crimes
Matt Yglesias makes a smart-ass comment,
and Megan McArdle passes it on; Why ?
Are any of the counter-arguments in comments,
particularly those of Jay, MarkG, and Brock C,
news to anyone here ?
In terms of the risk they pose to Americans,
IslamoFascist Terrorists are unique in wanting
to see us all dead, and close to having the
capability to realize their goal.
"Liberalism is a Philosophy of Consolation
for the West, while it commits suicide."
I cannot help but wonder if there is any chance that KSM will be acquitted - or the even bigger PR disaster, he is acquitted and we quickly find a pretext to avoid releasing him.
Is there anyone in the world who really thinks this is anything but a show trial? How on earth is this going to show the muslim world how fair we are?
democratic core writes:
Being on the battlefield without bearing insignia, as well as failure to bear arms openly, among numerous other infractions of the Land Warfare rules, put these self-proclaimed "warriors" outside the protections of the Hague Conventions.
And there is no logical reason to import them here and afford them the protections in the civilian criminal justice system meant to deal with domestic crimes -- especially since they entirely reject the entire system in which these protections are grounded, refuse to play by its rules, and seek to subvert it through any means possible so as to use it as a weapon against itself.
Exactly. If KSM et al. are not POWs - and I agree, they are not - they are subject to adjudication as criminals. Conventions such as the Hague Convention are actually designed for the protection of POWs, to prevent them from being subjected to show trials in criminal courts. The statement that 9/11 was not a "domestic crime" is a bit strange. I saw it happen, a few blocks away - looked pretty domestic to me. The statement that KSM should not be tried criminally because he "refuses to play by the rules" is also pretty bizarre - the same could be said about virtually any criminal, indeed, it is essentially the definition of a criminal.
To those who object to criminal prosecution as the logical disposition of people like KSM, I'm not sure what alternative is being proposed. Why not just summarily execute them? If it can be determined that they are not criminals but warriors, albeit not prisoners of war subject to treatment as such, and if the "battlefield" is allegedly omnipresent, why not just kill them? Why have a "military tribunal" - where does the right to that come from? Why haven't you been complaining about the Bush Administration for all these years - housing these people in Guantonamo at great expense instead of simply killing them?
Meh. We could certainly go on like this, with your explaining there's no distinction between the categories in question, and my blah-blah rebuttals showing the distinctions. But I think it's less tiresome if I just race you to the end:
KSM isn't a POW, and must therefore be a criminal and cannot be grouped into any other category. He can't get a military trial because he committed a crime/act of war -- what's the difference since it was domestic. Not playing by the rules truly is the same as a criminal act, no other distinctions need apply.
How 'bout this: Military tribunals are indistinguishable from civilian criminal courts, so let's just say the tribunals in GTMO are civilian criminal courts for all indents and porcupines.
He's locked up in GTMO which is a jail, as is whatever pen the put in Manhattan. So let's just leave him where he's already doing just fine and call it even.
Since he's a jihadi and true believer, he believes in life after death, so let's string him up and just think of him as living on in freedom in another place.
There's really nothing to argue about here at all. It's just all the same.
I'm sure to Mr. Yglesias, the shelling of Fort Sumter was just a property crime, and denying the Confederacy their narrative would have sufficed.
This is exactly the problem that non-state actors are supposed to cause. The defense mechanisms of most countries are setup to deal with two types of threats a) an external threat from rival political entities that can be identified and dealt with directly, and b) threats from individuals. The military handles the former, the judicial system the latter. It would be great if opponents pigeonholed themselves neatly into those categories. But they don't, specifically because as a tactic, it disrupts our preset modes of dealing with threats. These folks aren't stupid. What is stupid is not recognizing that our opponent has adapted his tactics, and adapting ours in turn. Foolishly insisting that our presets will suffice. Now we're worried about the power of words when for years we've carefully been told that it's "insurgent", not "terrorist", or "murderer", or "camel humping fanatic". And I would bet any amount of money that KSM, nor anyone like him, gives the slightest bit of a shit about whether an infidel calls him a general of a distributed idealogical army, a common criminal, or the Queen of Sheba. When people seriously spend bandwidth and make policy decisions based around denying a murderer who plots the death of your people the power of a his narrative ("...well, they took away my narrative so I guess I'll stop blowing people up and hating Jews...", then there is really and truly no hope for Western civilization.
In terms of the risk they pose to Americans, people like Khalid Sheikh Muhammed are closer to a drug lord than an enemy general, and treating him like a criminal rather than a terrifying military genius denies him a valuable propaganda tool.
Er, no. Treating AQ like criminals means arresting them after they blow something up, and putting them on trial gives them a big public forum to spout propaganda.
As much as we all would have enjoyed hearing the defendants at Nuremberg explain how Jews deserved to die in criminal trials rather than military tribunals, I'm not sure how it would have "denied them a valuable propaganda tool."
I can answer one of those questions. There is no statute of limitation on murder.
This seems like something that could be resolved pretty easily if we were to choose our legal action by the method in which the terrorist is captured. If they are picked up by domestic or foreign law enforcement, they are brought through the criminal justice system. If they are caught via military action, they are judged through military courts. The latter can be executed if found guilty, or held until the cessation of hostilities as POWs if not.
What this controversy really does is confuse how our military operates. If everyone we capture in war is going to be or could be treated as a criminal, our soldiers have to operate as police. There's a reason why we have a distinction between the two, and I don't think it helps anyone if we were to get those roles confused.
There is no good outcome to this. While the trial is ongoing, our soldiers will be capturing people in the field with no idea if the enemy will eventually be set free because they never sought a warrant to raid a building, or they didn't respond fast enough when he demanded a lawyer. If KSM is found not guilty or is otherwise released, we're fools. If he is found guilty, we're hypocrites (we'll afford you all of our rights, but only after we're done abusing them). The Obama Administration is creating confusion for no discernible purpose.
I should have said "judged for war crimes through military courts" in the first paragraph. Otherwise it sounds like I would be in favor of holding people indefinitely for nothing, whereas I assume that they are at least enemy combatants (if not legal ones).
The guy is going to plead guilty. That's why they are confident in a conviction.
He wants to stand up for Islam and say he did it. All this dithering about him getting off the hook is nonsense. He does not see himself as a weasel that wants to get out of his crimes. He thinks he's a lion who boldly declares what he's done.
And for some reason we're going to give him a microphone so he can tell the world one last time before he dies how great he and his followers are.
That might be true, but given the obligation to give him legal representation, would he be allowed to do so? In theory the adversarial process depends on two sides contesting an issue, and it starts to break down when the defendant begins doing things to hurt his side of the case. His attorneys will want to force the prosecution to prove it's case at a bare minimum.
I think this is largely a problem stemming from the criminal justice approach. People at war with the U.S. aren't inclined to do anything to legitimize the trial and procedures we hold dear. I'm thinking Chicago 7.
If he is judged not mentally unfit then he can fire his counsel and do whatever he wants. From what I've read KSM is essentially sane, he just has very different beliefs and goals.
Sure the judge will appoint some lucky ACLU crapweasel to be his "standby counsel", but he can't stop KSM from pleading guilty.
It's unlikely he will plead guilty, since he will refuse to recognize the court's jurisdiction over him. That will allow him to sit back and watch the spectacle of defense lawyers vigorously defending rights and a system he does not believe in.
We would also be wise to rob him of death at our hands and claiming martyrdom. Sitting in captivity and isolation for the rest of his life is better. We should not want to hasten the arrival of anyone who thinks his heavenly reward is on the other side.
Like SamX, I think KSM will plead guilty, or at least, he intends to at this moment. However, if he or other similar defendants choose to fight conviction, what are we going to do about the discovery phase? If I were his lawyer, I would be as intrusive and aggressive as possible in discovery in order to force the court and the government to corrupt their own judicial processes, which they will.
Now, KSM is going to be executed, there is no doubt in my mind about that, but the trial itself may do more damage to judicial process than we recognize right now.
I was thinking along similar lines when I replied to SamX. I think the conduct of his lawyers is key to how this plays out. They have pretty high duties to protect the client, even if the client isn't protecting himself.
And definitely yes, the justice system is apt to swallow a poison pill here.
This is not a new problem except for Americans. Both the British and Israelis have been dealing with this issue for years.
The long war against the IRA started out American style, with torture and arbitrary detention, before it was realised this was entirely counter-productive and acted as one of the Provo's main recruiting opportunities. It's also relevant that one the things the IRA dearly wanted and were consistently denied was political status but this was refused - much better to see oneself as a romantic revolutionary rather than a criminal gang with political pretentions. The only time the IRA saw any advantage in criminal status was in accessing compensation available to those whose rights had been abused which they seemed quite happy to do so and I was similarly happy as it put their military pretensions firmly in their place.
In the last two decades of the war, it moved almost completely to a criminal model of prosecution, albeit with help from the military. If you could get a "clean kill" (ie with gun or bomb in hand and not dropping it when challenged) you did so, otherwise you arrested them and they went to trial. Quite a few were acquitted who in all probability were guilty but it was quite clear who had the moral high ground and was effective in getting most of the bombers of the streets. I can't see any reason why the same can't be done to Al Quaeda.
Ann, ajwpip
You're both so right. We should have military courts for Mafia suspects!
After all, domestic (local!) crime syndicates could much more easily reach members of a jury than foreign terrorist organizations.
blighter
We've tried terrorists in the past. England and Spain tried the perpetrators of their terrorist attacks. But blighter and others are willing to throw our principles and the rule of law out the door because of his fixation on what "they" think of us.
What a bunch of cravens. Thank god commenters here are not representative of the American people. Otherwise KSM would have already won.
How soon everyone forgets...
911 planned in Afghanistan and Pakistan. Training done there.
Those are not places we can send in the FBI, as they do not have jurisdiction even if they could somehow get there. So if you use only law enforcement, you essentially have to let AQ sit around planning and training in safe havens and be okay with that. It may look like a good call NOW that we have troops in Afghanistan but it did not look smart in 2001.
Secondly, do we remember the Scheer book where they talk about CIA snatch teams planning to take Osama down? The lawyers involved? The endless planning to have "comfortable" chairs and how to restrain him? (no duct tape, might hurt his beard." This made it impossible to actually attempt the mission.
Timothy McVeigh - imagine if he had a training camp in Canada, and trained followers to infiltrate the USA and conduct multiple bombing attacks. Canada for some reason refuses to cooperate and lets him do this with impunity. Explain to me how law enforcement works in this situation, even if he is a "citizen." It doesn't.
Two issues.
First, this isn't KSM on trial. It is the whole Bush anti-terror apparatus and procedures. If KSM is acquitted, then the idea will be presented that what Bush did was unjust and forced the state to let him off. I'm not quite sure if that will turn out as Holder may believe. I would suspect something close to insurrection.
Second, everything that was done previous to this moment with KSM was with the goal of preventing another attack, rolling up his networks, etc. Not to procure a criminal prosecution. Dig out Wright's book Looming Tower and read how the two branches, the FBI with a goal of prosecution and the CIA with a goal of preventing were in conflict, and in the end made it trivial for a bunch to fly planes into a building. Gathering evidence that will be allowed in court to prove beyone a reasonable doubt is far different from intelligence work during a time of war. That is why nations under attack act differently than when there is a crime spree.
Derek
I'm embarrassed that this is even an issue. These are foreign nationals who declared war on the US! The fact that they are not part of some organized army commanded by a foreign government is inconsquential if not irrelevant. To me, treating this as a civilian case is just another step by the administration towards complete pullback from any military stance against terrorism. They've already removed the word "terrorism" from any language used to describe such attacks, and they've already committed to pulling out of Iraq and reducing our presence in Afghanistan.
And don't give me this BS that military tribunals were Bush's way of skirting the law. This country has a long history of military tribunals, from FDR all the way back to Lincoln, and it was applied to enemies of the US attempting sabatoge on US land. And, for those who insist on bringing up Constitutional Law -- in 1942 military tribunals were upheld as constitutional by the US Supreme Court!
Does anyone doubt what the result will be of affording a civilian trial to KSM? Good luck at jury selection, and discovery will be a minefield as the defense attempts to bring out into the public all the intelligence techniques used to catch him. Then there's the problem of miranda. The proceedings will make the OJ trial look like a traffic violation. And to what end? Will it really strengthen the country and improve the relations of the US with the world? What idealistic naivete. Well, that basically sums up the Obama administration, and all of his deluded followers. I feel so sickened by it.
Oh, and one more thing: I'm certain that all the righteousness pouring out about trying KSM in civilian court is based on the assumption that he will be convicted. But what if he's found innocent, or what if his case is dismissed due to a technicality? Then what? Someone please explain to me how our national security is strengthened as a result.
The only this can work out is if every time KSM comes to trial, it is declared a mis-trial for some reason. There are plenty of reasons available: unable to find un-biased jurors, unable to cross-examine the people who captured him, denials for requests of classified information. Just pick one.
Then, after multiple mis-trials (not double-jeopardy because he hasn't yet been tried), President Obama declares a new legal category, not civilian or military, that allows different rules of evidence, plea-bargaining, waterboarding, etc, of terrorists. The new legal category resolves the problems of Gitmo, indefinite detention, guily verdicts with extreme restrictions on discovery, easier route to execution, allows them to be killed by being eaten by wild pigs, etc. All the stuff that actually allows justice to be done while denying propaganda opportunities and while also disheartening the Islamic extremists.
If this were the Bush Administration, I could actually believe this was the intelligence/wise hidden agenda.
But considering the performance of the Obama Administration, it's a cinch these bumbling fools aren't looking beyond trying find a way to campaign against Bush again in 2012.
@ Martin: Military Mafia & Rule of Law
An innocent man is better off in a military court.
For purposes of political propaganda, and general
perversion of the Rule of Law, a civilian court
is the venue of choice.
The Wiseguys know better than to foul their
own nest; They and their families live here.
The principles of the people of the US do _not_
include putting themselves, and their families,
at risk, as_a_nation, in order to avoid the
risk of compromising their nation's laws.
I hate to to use a quote from someone I mostly disagree with but in this case Pat Buchanon has made an excellent point on this when he writes:
"Is it possible we have done an injustice to this man (KSM) by keeping him locked up all these years without trial? For that is what this trial implies – that he may not be guilty. And if we must prove beyond a reasonable doubt that KSM was complicit in mass murder, by what right do we send Predators and Special Forces to kill his al-Qaida comrades wherever we find them? For none of them has been granted a fair trial. When the Justice Department sets up a task force to wage war on a crime organization like the Mafia or MS-13, no U.S. official has a right to shoot Mafia or gang members on sight. No one has a right to bomb their homes. No one has a right to regard the possible death of their wives and children in an attack as acceptable collateral damage.
Yet that is what we do to al-Qaida, to which KSM belongs."
And what about Taliban prisoners? We invade there country and then call them criminals?
As per the decision of Holder - why are some trials being held in civilian court and some in military tribunals? This totally negates there claim that these people should be treated as criminals. The fact is, the administration wants there cake and eat it too. They want a civilian trial for those they know they can convict and a military tribunal for those they are not too sure about. The administration claims some are going to trial under military tribunals because they bombed military targets - isn't the pentagon a military target? This is hypocrisy and the Obama administration is simply continuing the Bush policy. As a country we need to decide - are these criminals or are they war combatants? Only then can we apply a consistent system of justice.
On his way to NYC, can't we just push him out of the plane over the Atlantic and say he escaped?
@ cozmicharile: Pat Buchanan said of Organized Criminals:
No one has a right to regard the possible death of their wives
and children in an attack as acceptable collateral damage.
Two words: Ruby Ridge
One word: Waco
What is the increased Probability of Deaths (Pd) to US
citizens associated with trying KSM & Co. in NYC ?