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Due Process and khalid sheikh mohammed

Two years ago, I was in my Constitutional Law class at the University of Idaho law school.  It was a year long class.  I also took criminal procedure that year, which is essentially a constitutional law class which focuses mainly on the 4th amendment dealing with illegal searches and seizures.  We also studied the 5th amendment dealing with jury trials/procedural rights, and the 8th amendment, dealing with excessive punishments.  Often during those classes, the subject of how terrorist detainees should be treated came up, especially in light of the recent Hamdi case and others.

As anyone can tell you, America provides more rights to suspected criminals than the vast majority of countries.  If a policeman so much as words a question wrong to a suspect, the suspect may walk free even if he were guilty.  To be honest, I wouldn’t have it any other way.  True conservative thought should follow the guideline that the state should follow rigid procedural guidelines before depriving any citizen of life, liberty, or property.  Obviously, some would take this to the extreme, and perhaps it has gone to the extreme in some cases, but overall, I prefer the procedural safeguards provided for in the Constitution.

Since Attorney General Holder’s announcement that KSM would be tried in a federal court in New York, many people have spoken out on why it is bad to afford KSM the Due Process provided for in the Constitution.  I raise my voice with those who are appalled that the procedural protections afforded to the citizens and lawful inhabitants of the greatest nation in the world are being provided to KSM and his fellow ilk.  Many commentators have pointed out that 911 was an act of war and not an everyday crime.  I disagree.  The acts of KSM and his co-conspirators were acts of cowardice terrorism, and not war.  We have rules and laws for war.  These are well laid out in the Geneva and other conventions.  These conventions/rules/laws do not apply to KSM as he was NOT a soldier.  He wore no uniform.  He pledged allegiance to no country.  He didn’t even do it for his religion.  He did it to cause fear in the hearts of Americans in order to gain control over them.  His plan was the same plan that Satan follows, which is to control people through fear and terror.

The question obviously arises, “what laws do we apply?”   Geneva doesn’t.  The Bush administration suggested military tribunals.  Yet, President Obama and Mr. Holder have decided on the regular criminal laws of the United States.  Along with those laws comes a host of protections for KSM.  This automatically raises red flags for the prosecution.  How long has KSM been held without a hearing?  For any other criminal, this would have had the case thrown out years ago.  I am sure the government won’t let this happen, but it shows the inability to truly use the safeguards provided for in our Constitution in such a setting.  Further, how can you find an impartial jury in NY?  I know there are some wackos out there who celebrated 911, but does anyone know anybody who is on the fence about this issue?  True, one can say that they only have to be impartial about KSM’s guilt, but who doesn’t at least have a clue about this.  I am sure there are those who don’t know what is going on with this case, but they are probably some of the last people I would want on the jury as they have shown a lack of care for the issues facing the country.

Further, what about the waterboarding?  Most cases would be thrown out if that had happened, even if the prosecution had a boat load of evidence gained otherwise.  William Ayers comes to mind.  We had full non-police coerced confessions of him on video tape, but his case was thrown out for “prosecutorial misconduct.”

At the end of the day, trying this case according to the criminal procedure set forth in the US Constitution does not work.  The due process afforded by the Constitution was not designed for terrorists.  It is an insult to our forefathers to apply their knowledge, compassion, and reason to KSM and those like him.  The right answer is a Military Tribunal, where all the evidence gathered can be brought in.  Further, a necessary level of secrecy can be applied so that any potential valuable intelligence can be saved from being outed by the media.

One really has to question what this Administration’s motives are.  I do not believe that President Obama wants Americans to be attacked again like on 911, but with actions like this, it takes a lot of faith.

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