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EDITOR OF REDSTATE

The Last Time We Tried A Terrorist In New York, Classified Documents Went to Al Qaeda

By: Erick Erickson (Diary)  |  November 16th, 2009 at 09:22 AM  | 

RESIZE: AAA

James Galyean wrote a post on Friday afternoon that I think we probably ought to focus on a bit more.

The left is celebrating Barack Obama’s decision to send Khalid Sheikh Mohammed to New York City for a criminal trial in a civilian court. In fact, since Friday I have gotten a lot of hate mail from leftists saying I must not trust our due process system.

The problem, however, is just the opposite. I very much trust our due process system to be exceedingly fair to a terrorist who will put great value in his opening statement.

But, that is beside the point. As James Galyean noted, and this is well worth repeating:

Documents from that discovery production [ in the 1993 World Trade Center bombing case ], which were never supposed to be provided to anyone outside the defense team, were later found in an al-Qaeda hideout.

Further, let’s be honest — we know that no President of the United States would chance a man like Khalid Sheikh Mohammed going free. Barack Obama would not risk a civilian trial without being sure of a conviction. This then amounts to a show trial, but one where the prosecutors will have to comply with discovery requirements that will potentially put classified material into the hands of Al Qaeda.

It has happened before.

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COMMENTS

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  • itsallverbatim

    this scares the bejesus out of me.

    Rightfully so. “Discovery” will allow them access to and exploitation of classified and possibly compartmentalized material from over half a dozen Special Access Programs (SAPs) and Alternative Control Measures (ACCMs).

    If you ever joked as a kid about something being “above top secret”; that’s what SAPs and ACCMs are. Compartments of information so sensitive or collected in a legally questionable way that a handful, and I mean no more than five, have access to them or even know the programs exist.

    Let’s make sure the terrorist scumbag(s) aren’t (isn’t) number six, mmm?

  • Marcus_Traianus

    why would we endanger our populace with such tom-foolery? GITMO is an isolated place and any terrorist moving in that direction would be detected and neutralized with collateral damage probably limited to a few fish.

    Now we are talking about moving these clowns near major population centers. Combined with the very relaxed immigration laws that Obama, Napolitano and Democrats have pursued and the resulting chaos on our border- this is a pure recipe for disaster. All for for ideological pursuits?

    The only thing this will prove is the pure stupidity of anyone believing that non-citizen, enemy non combatants should be tried in US courts. Any person can take a brief glimpse into history 20th century conflict and in about five minutes determine why no person has ever been tried in this manner.

    Just stunning; one really has to ask what is the goal and who is this aimed at pleasing? Certainly not the majority of Americans- but we are becoming pretty used to that position under Obama and Co.

  • JoeG

    Last sentence of the second paragraph “out” instead of “our”

  • tankertodd

    Remember that Obama is an academic, he’s a product of Hyde Park extreme liberalism, American self-hatred, and has deep ties with Muslims. I wouldn’t assume for a minute that if a trial resulted in releasing a terrorist that he wouldn’t bask in the glory of “doing the right thing” and the notion of “better 10 guilty men go free than an innocent man be imprisoned.” He could pin the whole thing on the whole torture thing, and make it Bush’s fault, thus extending the shelf-life of the Left’s favorite political excuse well.
    Remember that Obama comes from a place far, far away from the mainstream. After all, he DID pal around with terrorists. Anything is possible. The only good argument is the political one, but given the events of this year one has to wonder if Obama is politically tone-deaf.

    Given that if one of these guys did get released they’d probably be operationally marginalized (i.e. “did they plant a GPS tracker in you? Why don’t you go to Antigua for 5 years and not call us.”) Obama could rationalize that these guys won’t be linked to any attacks on Americans in the next 7 years.

    Obama is not looking out for America – he’s looking out for his loony out-of-mainstream agenda and point of view. Releasing a terrorist is not only possible, but potentially desirable in his own perverted view.

  • cwilson

    Are you SURE about that? I’m not; this is a president who cares more about showing he is “different” and “better” than all 44 of his predecessors, who cares more about what “The World” thinks of HIM, than he does about pesky details like a few million American citizens’ lives at risk. This is a man who views the Presidency of the US as a mere stepping stone to bigger and better things on the world stage, an audition for UN Secretary General after surrendering US autonomy to that body. He’s a transnationalist to the core.

    How could a man like that, say “well, yeah, our Justice System said he was innocent, but we ain’t lettin’ him go.”

    And frankly, I have my doubts about the personal security of the jurors and their families in a case like this — never mind larger threats to NYC. The defense team — and thus KSM and confederates — will eventually know the names and addresses of those jurors (whether they SHOULD or not, legally, is immaterial. They will find out). And if that thought occurs to me, you can bet it will occur to the jurors — or be pointed out to them in a late night phone call.

    No, I have doubts that Eric Holder, FALN-lover, even CARES whether he achieves a conviction. Never mind whether, in the scenario above, he is capable of getting one. And Obama won’t hold an “innocent” man in the face of protests from his most beloved constituency (foreigners who hate our country). And at root, this is all about appeasing the Euros, the hard left, and enabling worldwide persecution of the Bush team via “war crimes” trials in foreign countries.

    See, we think releasing all this data in open court, or even “privately” to the defense team, is a PROBLEM. Eric Holder and Obama think it is a feature, not a bug.

  • ceili_dancer

    Travelling overseas to Denmark to pimp the olympics for Chicago without certainty of it happening. That went over well didn’t it. This administration is rank with wllfull incompetance or he has some other agenda for this. The only thing I can see is it would be a chance to put the Bush Administration and the CIA on trial through the terrorist’s defense.

  • douglaswarren

    In recent history NYC courts have handled 170+ terrorism cases successfully, I still just think this may not be the best idea.

    I see no way they will walk, but how did these past documents get out after trial? My guess would be because they went into a documented record because of it’s use as evidence and went into a databse that could be hacked as powers have proven they can break into our Internet protections as well as we can into theirs.

    It’s already done now though, all we can do is watch the circus unfold. If we’d just tried them in the military court under bush during the last 8 years we would have been able to avoid all this!!!

  • itsallverbatim

    would not allow him to do that.

  • itsallverbatim

    The adults would not allow that to happen.

  • masterthief

    How many times have we seen judges make completely irresponsible calls? I don’t even see how the civilian courts in NYC have the jurisdiction to try this case. So much relies on the choices of judge and jury. On top of that, I whole-heartedly distrust trial lawyers. Look at our Congress and it becomes pretty obvious why. There are so many ways for the defense to postpone trial and loopholes to avoid being judged by the intent of law. The effectiveness of this relies on so many different choices: judge, jury, prosecutor, and defense. I believe that the administration will do what they can to get a guilty verdict out of this, but my question is how much damage they will do in order to score political points.
    More than likely this circus will be used as motivation to put Bush administration officials on trial after they publicly release classified information.

  • 10ksnooker

    Number one on Al Qaeda’s target list. How cool is that, the best place to bomb, for their next 15 minutes of fame.

  • Tbone

    To which adults are you referring?

  • dave_in_atl

    The Bush administration had 7+ years to prosecute KSM. If they had done their job Obama would not be in a position to screw up his :)

    Thankfully I have a ton of faith in our justice system, and I suspect KSM will be tried, convicted, and put to death with little to no effort.

  • cwilson

    exactly WHICH adults are you talking about? The rogues gallery of czars? Axelrod? Congressional “watchdogs” like Pelosi or Reid? Sorry, I’m not confident that there ARE any actual adults in this administration.

  • cwilson

    .

  • bs

    Obama is a radical leftist. I wouldn’t put anything past him to make a point. As with the health care vote, we assume these guys are rational. I don’t believe that’s a correct assumption.

  • cwilson

    1) The prosecution must turn over all evidence it intends to use in the trial to the defense.
    2) The defense can also subpoena any documents (technically, subpeona a person to produce documents) that they can convince the judge are necessary for the defense.

    Then … the defense team has them. That means KSM has them. The only missing link is how does KSM get those documents to his friends. Frankly, that seems almost trivial in comparison to the normal protections afforded such documents — you’ve already bypassed all that, and a bad guy has them in hand, and you’re relying on a team of defense lawyers — HIS defense lawyers — to prevent him from getting them into other hands.

    Yeah, good luck with that.

    And that’s assuming that none of the lawyers actually slides from normal defense lawyer “slimeball” to actual traitor, like Lynne Stewart.

  • Achance

    They have to turn all the evidence over whether they intend to use it or not because they’ll have all sorts of motions going to try to get the charges dismissed.

    Fundamentally, there is no way that KSM et al. can be tried on the evidence adduced by the CIA and the military. At most it can form the basis for a complaint and then the US has to gather new evidence “untainted” by allegations of torture, due process issues, speedy trial issues, right to counsel issues, etc. Basically, they either start over or he walks and I think he walks anyway; it is just too difficult to put the toothpaste back in the tube.

    I don’t know what there is like this on the criminal law side, but there’s a lot on the employment law side. Actually, it is harder in due process terms to fire a permanent public employee than it is to put one in jail and there are lots of court cases. The seminal due process case is Loudermill v. Cleveland Board and Garrity v. New Jersey addresses use of compelled evidence. Both are USSC cases on strictly Constitutional grounds. It is easy to argue that the evidence against KSM et al. was compelled and violated both his right to due process and his right to refuse self-incrimination. Ergo, no evidence and they walk. And I don’t think it would bother Comrade Obama a bit; he’d just blame Bush.

  • douglaswarren

    The usual rationalizations of limits of access and a non-public trial apply here. Or so they say.

    I don’t know. Yeah, I’d hate to see a lawyer go traitor I just don’t really see that happening. I think the scenario I laid out for howthe documents would or could get out because of the trial would be more likely.

    And my point still stands, I don’t like this, I think it’s not a smart idea. I don’t think the sky is falling but it does raise a great number of issues with possible negative outcomes. I’m not so convinced all of a sudden this makes NYC a bigger target. It is, has been, and always will be a target as one of our flagship cities with such an expansive direct global reach. The possibility that it would be attacked JUST BECAUSE KSM is there is marginal.

    It will however create a press circus and be forced to deal with heavy political issues that have been controversially debated on their own. So, I think is a bad idea no matter what.

    But again, why did we not try him under Bush?!! I’m so upset with him over this. He did a lot of great things but KSM had admitted it and said he wanted to die!! He had how many years and now we’re stuck dealing with this!!

    I mean, the decision has been made now. They’re coming and are gonna be tried here. All we can do is hold on now, because Bush dropped the ball.

    I hope we’re all wrong and this turns out to be a model of our justice system. Odds are what on that though?

  • douglaswarren

    The public will not stand for it. If they walk, in all seriousness, Obama is done. That WILL wake up the rest of the sleeping masses.

    I think they know this. I really don’t think they’ll let him walk. I think they’ll make it difficult and make a show of it to rub their agenda against Bush’s practices in everyones face. But I don’t see they going free.

    All I can say though is, God help Obama if they do, cause he’s gonna need it. I think he knows his ass is on the line. And frankly, it would take an invesigation of the absolutely worst sort and I mean terrible, basically zero case at all, against this guy in order for his defense to be able to beat it.

    He’s done IMO. It’s how all this is going to affect US as it goes on that worries me.

  • aesthete
  • aesthete

    if catering to a defunct ideology trumps your concern for the rate of success of said ideology.

  • aesthete

    I doubt that Obama would allow for the possibility of KSM walking or getting a light slap on the wrist, if for no other reason than that he still isn’t done with his domestic agenda. OTOH, he’s already done several things that just don’t make any kind of sense (Olympics and the like), and I, unfortunately, have to consider the possibility that Obama might not care enough to keep a close eye on how the case develops, or worse, that he wants KSM to walk/serve a light sentence and will take action to make sure that it happens.

  • Marcus_Traianus

    One point to ponder- this trial will drag on for awhile. Now rest assured it will be a travesty of justice- a virtual cornucopia of the contra-intellectual and theater of absurd. It will take every potential “flaw” of our justice system and turn it into a dragged out, front page mockery.

    Don’t forget that Holder’s old pals at the firm will help represent these terrorists and they can’t help themselves. They will chortle like kids left at home by their parents for the first time, as motion after motion is filed. Most of those motions, the resulting ruling and the affect (e.g. the release of classified intelligence methods, lack of evidence from the battlefield, etc.) will provoke outrage from the public as terrorists responsible for killing 3,000 Americans laugh in our face, eat Duck l’Orange from Le Cirque, watch HBO and get free Swine Flu shots

    My opinion? This could be Democrats and Obama’s worst nightmare. With the whole 3 ring circus happening in the background , they will be trying to get reelected. I am guessing one of the talking points won’t be how they finally got KSM “justice”.

  • americanmale

    This trial is all about a stipulation as to the legal definition of torture. Both attorneys, because they are cut from the same cloth, will agree to a very weak definition. Then, with that in hand, Obama will hand it over to the unrecognized, pathetic, and paticularly inept international court which will then indict Bush and Cheney on crimes against humanity.

    The world will issue a resounding cheer. Obama, the narcissist, will then get his oh so coveted world wide accolade and adornment (the true goal of all of this), and we, the people, will once again be the brunt of global scorn and ridicule………….great foreign policy O’bow-er.

  • mustango

    then by definition KSM won’t be getting a “fair trial”. Not that he deserves or has the right to one in my view, but Obama is the one making hay about staying true to “our values”, whatever that means.

  • http://moelane.com/ Moe Lane

    NT