KSM on Trial
posted by Gerard Magliocca
The decision to try some of the ringleaders of 9/11 in the District Court for the Southern District of New York raises many interesting questions. Here are a few below the fold:
1. Should a change of venue be granted? Are the defendants unduly prejudiced by a trial held a few blocks away from Ground Zero?
2. To what extent, if at all, is knowledge about 9/11 a reason to excuse jurors for cause?
3. If the prosecution exercises several of its peremptory challenges against Muslims or Arabs, could that lead to a Batson claim?
4. Can the case against the defendants be made without relying on evidence obtained through torture? If not, would such evidence be admissible? (The same issue may arise for electronic surveillance.)
5. Can KSM represent himself and then refuse to attend the proceedings, thus turning this into a kind of trial in absentia?
6. If #5 occurs, would the death penalty still be an appropriate punishment?
7. To what extent should defense counsel (if there is one) have access to classified information to prepare a defense?
8. Will all of the OJ trial commentators return for a kind of circus reunion?
November 19, 2009 at 6:17 am
Posted in: Current Events
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Responses (11)
Jones - November 19, 2009 at 7:32 am
Yes, change the venue. Send it to the Rocket Docket and get this thing over with.
What, me worry? - November 19, 2009 at 7:47 am
Did Obama saying that he expects KSM to be found guilty prejudice KSM’s right to a fair trial?
KSM is a member of al Queda. Why do we kill them with drones, etc., if they are entitled to a presumption of innocence, a trial in the U.S., etc? We cannot kill purported mafioso, so why can we kill al Queda sympathizers/members?
Law Student - November 19, 2009 at 8:09 am
Thanks for posting about this interesting topic. Just a few more questions to add:
What sort of Confrontation right is KSM entitled to? Must he have an opportunity to confront, in person, all the soldiers/interrogators who contributed to obtaining evidence against him?
Assuming that KSM was never given Miranda rights, and even setting aside information obtained through aggressive interrogation, don’t we have an admissibility problem with any statements he made to interrogators, based on a lack of voluntariness?
Ballsy McBallson - November 19, 2009 at 8:32 am
What precedent does this set for those captured on battle fields?
Are they all entitled to a civilian trial on American soil?
Do our soldiers now need to participate in evidence gathering and investigation on the battlefield?
Miranda rights?
Do we fly public defenders to Iraq to represent prisoners when they are taken?
John Steele - November 19, 2009 at 8:45 am
IIRC, one of the earliest memo John Yoo wrote post-9/11 at OLC was on the Miranda question. So it’s been given some thought.
Sam Buell - November 19, 2009 at 11:48 am
What will the courts do with the controversial defense of “outrageous government misconduct” in this case? For discussion, see http://www.philly.com/inquirer/opinion/20091119_Case_s_main_question_will_be_about_torture.html.
Is the Supreme Court now less likely to rule for former Enron CEO Jeffrey Skilling on his change-of-venue argument (cert. granted before decision to try KSM in SDNY), knowing that if it rules that Enron can’t be tried in Houston, 9/11 certainly can’t be tried in NYC?
TalkingHead - November 19, 2009 at 2:23 pm
Could KSM challenge the prosecution on the basis that Eric Holder was nominated and appointed by a President that is not a natural-born citizen, in the mode of the increasingly popular appointments clause challenge? ;>
Maryland Conservatarian - November 19, 2009 at 2:39 pm
Not to worry – AG Holder has thought it all through; no doubt bringing the same attention to detail that he brought to the Marc Rich pardon and undeterred by the polemics of all the naysayers out there:
And, as he’s told us, he’s “here to talk about facts and evidence, real American values”…that is, I guess, when this learned man has taken the time to gather such facts and evidence:
“SEN. GRAHAM: …But here’s my concern. Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?
“ATTY GEN. HOLDER: I don’t know. I’d have to look at that.”
whew, crisis of confidence averted.
Pat8 - November 19, 2009 at 4:18 pm
Ladies and Gentlemen, the circus has begun!
Act I features the Ringmasters, Obama and Holder.
Scene 1: The Ringmasters announce the purpose is to show the world “we can do better.” [Applause]
Scene 2: The Ringmasters proclaim KSM is guilty and will be executed, thereby setting the stage for difficult jury selection and making the trial sporting by giving KSM potential grounds for appeal.
Scene 3 (before senate committee): Holder brushes off possibility KSM might get off, and assures everyone KSM will never be set free. (Let’s see–wasn’t the stated reason for the circus to show the world we could do better?)
**** Long intermission for passing Obamacare and Congressional vacation ****
Act II, the pretrial discovery period, will feature months or years of questioning of Bush administration officials, CIA, FBI, military, etc., and disclosure of reams and reams of secret and top secret documents, names of agents, names of informants, etc.
**** Long intermission during which the identified agents and informants are disposed of by Al Qaeda; and terrorists breach our defenses with the help of the security information they have obtained ****
Act III, The Big Show: Scene 1 will feature endless days or weeks of Jihadist ranting and raving by KSM, followed by an Al Qaeda recruiting pitch and fatwah calling for suicide bombers to descend on NYC.
Scene 2 will feature a trial of Bush, Cheney and the CIA by KSM’s defense counsel while Holder and Obama sit back and revel in the debacle as it is shown on TV world wide. Obama and Holder cannot come out and directly try Bush, Cheney and the CIA, but they sure won’t object when KSM does it for them.
And the circus will go on and on, funded by you and me, the US taxpayers. Assuming, of course, the Big Tent hasn’t been wiped off the face of the earth by the terrorists.
Michael - November 19, 2009 at 5:18 pm
Doent Obamas public statement that KSM will be convicted and executed prejudice the case? He is the nations highest law enforcement official.
PrometheeFeu - November 20, 2009 at 9:55 am
I think there is a fundamental problem in attempting to give these people a fair trial. If American citizens were to pick the people for whom they have the most hatred, KSM would probably give Hitler a run for his money. Under those circumstances, even if every piece of evidence was thrown out. Even if all the prosecution does is say: “These people are responsible for 9/11″ they will be convicted. And if they are not convicted, the trust of the American people in the justice system will be significantly undermined. (On top of likely death threats against those responsible for a lack of conviction) We all “know” that they are responsible and nothing but the harshest penalties will be accepted by the public.
In effect, a choice has to be made between a “fair” trial where the accused can potentially get out with a light or even no sentence but take the risk of significantly undermining public trust in the justice system. Or give them an unfair trial where the accused cannot get away with anything less than a very harsh sentence which will renew public trust in the justice system. (by showing that it is capable of handling any case you throw at it) I find it quite ironic and sad (not to mention a bit sickening) that at this point, the only way to maintain the public trust in the fairness of the justice system is to twist and effectively corrupt that justice system.
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