KSM’s Resistance Defense
posted by Jenny E. Carroll
Jenny Carroll is a former public defender and Prettyman Fellow. She currently teaches criminal procedure, criminal law and evidence at Seton Hall Law School.
Last Saturday, Khalid Sheikh Mohammed (“KSM”), the self-proclaimed mastermind of the September 11 attacks, and four others were scheduled to be arraigned before a military commission in Guantanamo Bay, Cuba. Things didn’t go exactly as the government had planned. Instead of pleading, the defendants resisted. KSM and the rest of the defendants refused to answer the judge’s questions. One defendant started praying, and another defendant shouted that he was concerned for his own and the other defendants’ safety. The behavior turned the arraignment – usually a fairly brief proceeding – into a disorderly 13-hour hearing.
These are obviously unusual defendants. They claim to have planned a devastating act of terrorism that forever changed our nation’s sense of security and itself. They have been held by their self-proclaimed enemy for nearly ten years awaiting trial. During that time, evidence against them was acquired through mechanisms reminiscent of the Spanish Inquisition — according the military’s own records, KSM was water boarded a total of 183 times in a single month. When their day in court finally arrived, the venue was not the federal court in New York, the most logical jurisdiction and the one Attorney General Eric Holder would have preferred, but a military commission. And while these commissions may have improved markedly since their inception in the Bush Administration, they remain shrouded in mystery with uncertain procedural or Constitutional protections.
Although these are unusual defendants in an unusual case, their strategy of resistance is not entirely new. The strategy declines to recognize the authority of the court and calls into question the legitimacy of the very system that claims the power to adjudicate. A long line of political dissidents and activists have sought to transform their criminal trials into a commentary on the system itself. In my forthcoming article, The Resistance Defense, I examine the implications of this defense. As I suggest there, the defense of resistance highlights two compelling but under-explored components of criminal law. First, the procedural rights that compose the right to a defense are more than individual rights; they have a communal value. The defendant may utilize them to challenge the accusation, but the community relies on them as well to legitimate the process and outcome. If a defendant forgoes these protections, the process is curtailed and questions of its legitimacy inevitably follow. Second, these procedural rights have a substantive component. They help to define notions of guilt and appropriate punishment. If a defendant chooses to forgo these rights, they effectively alter what it means to be convicted or to deserve punishment, skewing the meaning of the law itself.
In the context of these cases, the resistance defense raises larger questions: What do we really have to lose by trying this case, or any of the military commission cases, in the federal court system that we trust every day with our most difficult cases and complex constitutional issues? Why couldn’t New York, the city that no matter what seems to endure and constantly rise ever higher, not handle the trial of the men accused of killing so many of its citizens? I, like everyone else, have heard the warnings of the high costs of security and risk of reprisals. But in allowing these trials to remain in these military commissions so besieged on all sides by questions of their legitimacy and sufficiency, have we lost something is more difficult to quantify but is infinitely more valuable? Have we struck a blow against ourselves as frightening as those imagined by KSM or anyone else who would plot against us? Have we abandoned the procedure and Constitution that we claimed to defend because we were more afraid of the men who would challenge it? In some cruel twist, have we forgotten the very freedom we claimed we were defending?
May 7, 2012 at 4:39 pm
Posted in: Constitutional Law, Courts, Criminal Law, Criminal Procedure
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Responses (11)
Patrick S. O'Donnell - May 7, 2012 at 7:42 pm
I was pleased to see you use his full name: Khalid Sheikh Mohammed.* But is the subsequent use of initials in this way a common practice in referring to individuals in criminal trials (irrespective of how ‘different’ this trial is)? After his full name is introduced, then perhaps we can simply use his surname. Among other possible complaints, “KSM” sounds like the name of a fast-food sushi chain or some corporate entity, and so forth. Whatever we might think of him and/or the acts he may be criminally liable for, he is still a person, with a name, and the use of his initials seems in some strange if not inexplicable way, to diminish the basic recognition that this trial involves a human being, a person, with a name. Why hasn’t the legal blogosphere referred to the suspected Norwegian mass murderer, Anders Behring Breivik, as “ABB?”
That aside, I’m wholly sympathetic to your line of questioning and the implied possible responses.
* See here: http://www.legalethicsforum.com/blog/2012/05/lawfares-coverage-of-the-ksm-proceedings.html
Jenny E. Carroll - May 7, 2012 at 10:08 pm
Patrick, thanks for your thoughts. I think abbreviations for longer names is not uncommon (think JFK, LBJ, or DSK), though I admit I have no sense of when the monogram is adopted and when the full name is always used or who decides this. Jenny
Orin Kerr - May 7, 2012 at 11:02 pm
I don’t follow how the “larger questions” are particularly relevant to the rest of the post. If KSM were charged in federal court, presumably he would use exactly the same tactics as he is using now to try to undermine the legitimacy of the process. It’s not like he would see an indictment in the SDNY as some sort of extraordinary symbol of legitimacy that would make him change his tune. Given that, it’s not clear to me why the fact that we’re giving him procedure A instead of procedure B suggests that we have forgotten our freedoms in some sort of “cruel twist.”
Orin Kerr - May 7, 2012 at 11:08 pm
Patrick, I believe the name “Mohammed” is the most common name in the world, and is used both as a last name and first name. Perhaps referring just to the “Mohammed ” case could cause confusion.
nidefatt - May 7, 2012 at 11:11 pm
Orin, he can use whatever tactics he wants. But if we all know he’s right, then it leaves a bad taste in all our mouths. Think modern-day Rosenbergs with the addition of a system-wide acceptance of the paring down of our rights AND actual proof of torture. We now know the Rosenbergs were likely guilty- but it doesn’t make their murders by our government any easier to swallow. In these cases, we have somehow lost the moral high ground to mass murderers. We are saying to the world- if you do X, we will throw out the rulebook- aka all our values and protections And once we become comfortable with getting rid of the system, we become comfortable with complete faith and trust in our government. And as you give them an inch, they take yard after yard after yard.
Patrick S. O'Donnell - May 8, 2012 at 8:03 am
Jenny, for what it’s worth, I’m familiar with the use of abbreviations for some long names. I suspect “JFK” became popular owing to its use as a campaign slogan: “Go All the Way with JFK” (perhaps the use of these presidential monograms is a way of paying indirect homage to canonical liberal democrats: FDR, JFK, and LBJ!). It seems Dominique Gaston André Strauss-Kahn referred to himself as “DSK,” thereby encouraging the media to do the same. In any case, for me such usage is beside the point: I’m concerned with the abbreviation in this instance with regard specifically to a suspect in a widely publicized criminal trial, where it may aid and abet de-humanization, especially of a “foreigner” (and even more so in our world, of a Muslim).
Yes, Orin, having had some training in the field of Islamic Studies (the one area where I’ve published a few things), I’m familiar with the popularity of the name Muhammad. In which case, let’s just refer to the man by his full name (I don’t think it would cause confusion to use the last name when the full name has been introduced prior to its use, as I said above).
Joe - May 8, 2012 at 12:08 pm
I question the “dehumanizing” argument — the use of initials is not somehow selective here.
I lose track, but on some legal blog, it was noted that unwieldy defendants are common in federal courts and judges have long experience with them while the courts themselves have long term legitimacy. And, our “freedoms” rely on use of certain proper procedures, such as acceptable trials. Why exactly is Prof. Kerr confused on that point?
Patrick S. O'Donnell - May 8, 2012 at 12:13 pm
Joe,
Help me with to recall _similar_ or simply highly publicized trials in which the names of the (foreign) defendants are referred to by their initials.
In any case, it’s not so much a full-fledged argument as an expression of concern that the use of the initials contributes to dehumanization (other variables at work here as well, this being only one of them).
Patrick S. O'Donnell - May 8, 2012 at 12:14 pm
erratum: “Help me to recall…”
Joe - May 8, 2012 at 12:23 pm
We use initials to abbreviate long names (and not just proper names) a lot in various contexts and not just as “campaign slogans” or in honorary ways. Other times slang is used (like “the zodiac killer”). It is used in particular when someone is particularly popular or infamous, when shorthand is often used. In that respect, he is rather atypical — the average foreign (or domestic) defendant is simply not discussed for shorthand to be used as much.
So, the question seems a bit besides the point. It is not like we are singling out some foreign reprobate here to dehumanize him.
Patrick S. O'Donnell - May 8, 2012 at 12:59 pm
Ah, to the contrary, I believe it’s right on point, and you helped me to make it.
Muslims have not infrequently been stigmatized, treated with contempt, and dehumanized in various ways in “the West,” and particularly in this country and especially insofar as they are, rightly and wrongly, associated with terrorist acts. And abuse of prisoners in detention abroad, torture, and the wars in Iraq and Afghanistan have served to contributed to this process, creating a climate conducive to same.
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