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EDITOR OF REDSTATE

The Left’s ‘Fair’ Trial

By: Erick Erickson (Diary)  |  November 17th, 2009 at 11:28 AM  | 

RESIZE: AAA

“Khalid Sheikh Mohammed is not a criminal. He is a soldier in a war captured on a battlefield. That is not something our criminal justice system was designed to handle and should not handle.”

I’ve seen a lot from the left in the last twenty-four hours that I, and conservatives in general, do not want to give Khalid Sheikh Mohammed a fair trail and that I, and the right in general, do not believe in our system of due process.

Let me be crystal clear: it is precisely because I believe in our system of due process in a civil setting that I do not want Khalid Sheikh Mohammed tried in such a setting. The left ignores this at its peril.

I have full faith in our system of justice. Criminal defendants are given every advantage and resource to ensure they do not get convicted of a crime they did not commit. Khalid Sheikh Mohammed will get most of those advantages and resources. But that is all a distraction from one central fact — Khalid Sheikh Mohammed is not a criminal. He is a soldier in a war captured on a battlefield. That is not something our criminal justice system was designed to handle and should not handle.

I think Eric Holder is flat out lying when he said this past Sunday that Barack Obama had no knowledge whatsoever of the KSM decision until he was headed off to China. But, to be charitable, even were that true, it ignores the fact that Eric Holder, the Attorney General, should not have been the one to make the decision. Khalid Sheikh Mohammed was picked up on a battlefield, not an American street.

Khalid Sheikh Mohammed is not a gang member. Al Qaeda is not a gang. 9/11 was not a drive by shooting or even a gang land massacre. 9/11 was an act of war. Al Qaeda is the enemy. Khalid Sheikh Mohammed is a soldier in a war. Our system of justice is not set up to try soldiers captured on a battlefield.

It is willfully naive and damnably indifferent to civilian American lives and our system of civilian justice to think otherwise.

I also do not think Khalid Sheikh Mohammed will get a ‘fair’ trial. Neither Eric Holder nor Barack Obama are dumb enough to risk Obama’s Presidency on a not guilty verdict. Like with the GM bankruptcy that sailed through bankruptcy in record time getting everything Obama wanted, the government will grease the wheels of justice to ensure a desirable outcome. It will be a show trial fit for a totalitarian regime. It will teach no one nor convince anyone that we are fair, impartial, or capable of handling soldiers in a civil justice setting. Only fools on the left will be deluded into thinking otherwise.

Along the way, however, Khalid Sheikh Mohammed will get all the parts of discovery that make it look like he is getting his day in court. He will get access to discovery material. He will get his opening statement. He will get a taxpayer provided lawyer. He has nothing to lose and will make a show of it — an intelligence gathering expedition courtesy of Barack Obama and Eric Holder.

It is an undisputed fact that when the Clinton administration tried, in civilian court, the World Trade Center bombers of 1993, the prosecution was compelled to turn over classified documents to the defense team, under seal, for their eyes only. In 2005, copies of those documents were found in Afghanistan.

I do not think there will be great acts of violence in New York. I am mindful of and remember Chenya and the schoolhouse hostages as terrorists sought the release of one of their own. But I think our security forces will keep New York safe. I also think, however, that inordinate amounts of money will be spent and resources consumed to do so. Along the way, we will loosen our grip elsewhere and the longterm consequences will be very bad.

Louis Pepe was a security guard at New York’s super max prison, the same one Attorney General Eric Holder intends to send KSM to. Ten months before 9/11, an Al Qaeda mastermind and his lieutenant housed together in that supermax prison plunged a sharpened comb through Mr. Pepe’s left eye, into his brain, causing Mr. Pepe serious injuries. They then attempted to commandeer Mr. Pepe’s cell phone and keys to unlock other cells. Unable to navigate the supermax internally, the terrorists returned to savagely beat and rape Mr. Pepe. It took an hour for other officers to make it through to Mr. Pepe and rescue him.

Lastly, let’s not forget New York attorney Lynn Stewart. She was convicted of helping Omar Abdel Rahman, the blind muslim cleric, pass secret messages to his supporters that urged the supporters to commit terrorist acts against the United States. Do we really want to put terrorists in a civilian courtroom?

Khalid Sheikh Mohammed is not a criminal. He is a solider in a war captured on a battlefield. That is not something our criminal justice system was designed to handle and should not handle.

UPDATE: One more point: Holder’s policy seems clear — if you attack military targets overseas, you go to a military tribunal. If you attack civilian targets here, we put you in a civilian court with a microphone and give you classified intelligence documents. What do you think the terrorists are going to choose?

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COMMENTS

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  • http://deafconservative.wordpress.com Cheetah772

    This move is in effect a serious repudiation of the war we’re now fighting in Afghanistan. It signals that Obama does not believe the war in Afghanistan is worth winning at all. Even so, if Obama sends more troops to Afghanistan, wouldn’t that contradict his belief that the best way to combat terrorism is through our justice system?

    In the other words, what we’ve been doing for the last eight years is all wrong, period. That is precisely the kind of message we don’t really want to send to terrorists all over the world. Yet, Obama is doing exactly that. It has all the making of a confusing message, and to be truthful, I am not looking forward to long term consequences of having this man, captured on the battlefield, allowed to have his day in court.

  • DamnCat

    There are two reasons for this decision:
    1) Obama and Holder get to preen and pose before their liberal supporters as sterling exemplars of “fairness”.
    2) Obama & Holder get to pretend that they are doing something about terrorism by personally prosecuting terrorists – letting the military handle it in closed trials does nothing for them.

    It’s not about security, or the law, or human rights – it’s about Obama and Holder – period. They’ve made the calculation that they, personally, will be better off this way. Considerations of national security, the law, human rights?etc. ? that?s all just background noise to them.

  • Illinicon

    in Manhattan or anywhere in America in all likelyhood, as do you think they are 12 people anywhere in the country that are neutral about 9/11.

  • http://www.redstate.com/tnjim TNJim

    of the Bush administration they have made us less safe. Holder and Obama aren’t concerned about consequences. Bush did it, so they must undo it. I fear your update may be prophetic.

  • Achance

    licenses who don’t even know what 9-11 is, and find them right in Manhattan.

  • neyney

    Since he isn’t a citizen then why would he be tried in our civilian courts? The same argument should apply to Sherriff Joe in Arizona and the illegals. How can the laws of the US be applied to non-citizens? Just as congress has no Constitutional basis to force us to buy healthcare these civil courts have no jurisdiction in trying enemy combatants. This should be tried in a military tribunal and nowhere near NYC. The Dems have shot themselves in the foot with this one.

  • Dan McLaughlin

    Great stuff, Erick

  • gunnerbs

    If it was, then how could we put visitors to the country on trial for committing murder?

    But you are looking in the right direction. It seems to me, the issue is the circumstances surrounding his capture, among other things. The perpetrator of the 93 WTC bombing was caught in the US (correct me if I’m wrong) by US police authority. KSM was captured during a military operation overseas during a time of war. Military captures don’t involve warrants, reading of rights, etc. This is one reason, I think, why the UCMJ covers this very situation–military tribunals.

    No one is saying that individuals captured during a military operation are not entitled to basic human rights…indeed the Geneva Conventions address this, and I know I was taught it annually during my time in the AF. However, this business of bringing POWs/combatants/war criminals/whatever into the US to stand trial in a civilian criminal court is not only dangerous on its face, it sets a dangerous precedent.

    The Bush administration was right to keep them off US soil; I just wish they would have went with Military Tribunals in a more expedient manner. Then we wouldn’t be in this mess!

  • Finrod

    “But one man’s technicality is another’s violation of due process; and the corollary of treating KSM like ordinary criminals is treating ordinary criminals like KSM.”

  • http://www.erickerickson.org Erick Erickson

    n.t

  • kdoc

    Remember that Holder is the one who has pushed to prosecute Bush-era anti-terrorism acts. Let’s say he goes through with this. Then let’s assume that bringing KSM back to NYC for criminal trial has some type of negative outcome – a terrorist attack, the releasing of classified documents, the revealing of anti-terrorism operatives, etc. What would stop a future (more conservative) administration from prosecuting Holder for these actions?

    As much as I disagree with Holder (and Obama) for their proposal re: KSM, I do not think they should be criminally prosecuted for it. I assume they are acting in good faith on advice they are being given (albeit wrong-headed). But what’s good for the goose is good for the gander, and if Holder goes ahead with prosecution of Bush administration members, he had better be ready to be hauled into court himself by a future administration.

  • antisocial

    NY Governor Patterson knew about this 6 months ago.

    http://www.cbsnews.com/blogs/2009/11/16/politics/politicalhotsheet/entry5676119.shtml?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+CBSNewsVideoISP+%28ISP%3A+CBSNews.com%29
    ——————————————–
    Paterson also said that the White House warned him six months ago this very situation would happen. He said while he disagrees with the decision, he will do everything in his power to make sure that the state’s Department of Homeland Security will keep New Yorkers as safe as possible.
    ———————————————

    Mr Precedent planned this 6 months ago.

    As Joe Wilson said accurately “You Lie”.

  • http://www.google.com twally

    I agree that deserves a tribunal over a trial any day.

    As long as we don’t stoop to their level of torture and take an eye for an eye etc. etc.

    If he does get a trail in NY which it seems he obviously is he still will get his due. He just better not end up in a state penitentiary or some minimal security prison.

    If I was president I would reform Guantanamo Bay Prison in certain current aspects.

  • robbyshankar

    I totally agree that KSM should not be afforded the protections of the Due Process guaranteed by our constitution. But please, let’s stop giving him the honor of calling him a soldier. He wore no uniform. He swore allegiance to no country. He had no moral or ethical code of honor. He is NOT a soldier. As a former soldier myself, I hate hearing him called that. He is a scumbag terrorist caught on the battlefield. Because he wanted to play war without playing by the rules “soldiers” play by, he should be afforded no protection other than a hearing in a dark room in Gitmo and a firing squad or noose.

  • http://www.google.com twally

    He can get a fair trial. Like the other commenter stated you can find someone off their rocker or someone who has been living under a rock for the past decade.

    I takes all kinds to run the cookie of society.
    You need the Flour, Sugar, and a few “Nuts”.

  • http://charlemagne-the-hammer.blogspot.com/ DerKrieger

    I don’t care about “fair” when it comes to KSM or any Muslim terrorist. If they raise arms against or commit violence against Americans they should be executed. These people are fanatics and can never be “rehabilitated”. They can only be eliminated like insects. IMO the Left are co-conspirators in Islam’s war against Western civilization and this show trial is just one more salvo in that war.

    I don’t give a crap about political correctness and am not afraid to call ‘em as I see ‘em. How many more Hasan’s are there in our military and in our country just waiting for their opportunity?

  • mschmitt
  • Marcus_Traianus

    An ever so brief reflection on the trial of Zacarias Moussaoui gives a glimpse into what we are about to see;

    - Sympathetic judges always on the edge of granting a mistrial
    - Broad intelligence disclosures
    - Uncooperative defendants making a mockery of the system
    - Sympathetic jurors that prevent the death penalty (one vote is all it takes)
    - Defense counsel that will spend years trying to score political points
    - Security situations that attract terrorism to city already traumatized by the events of 9-11
    - Precedent setting decisions which will grant broad US Constitutional rights, the rights our Armed Services members and populace have died for, to non-citizens terrorists.

    Had enough “hope and change” yet?

  • Kyle-MI

    Our justice system was not created solely for its citizens to have faith in it. The justice system is a careful balance of justice and the rights of the accused. The old saying goes that it is better to let 100 guilty people go free than to punish one innocent person. That sounds fine when we are talking about small crimes like theft, but do we really want to take those kind of chances when dealing with terrorists who planned the deaths of thousands of our citizens and who are eager to kill even more if given the chance.

    In a flawed world, our system of justice is probably about the best we can do. However we are foolishly naive if we think it works perfectly under every circumstance. The Constitution is not a suicide pact.

  • Kyle-MI

    I agree with robbyshanar upthread. Khalid Sheikh Mohammed is not a soldier; he is an illegal combatant. This is not just semantics. The Geneva convention specifically and clearly distinguishes between the two. It does not just define these terms. It explicitly indicates the differences in treatment between them.

    He is not a criminal in the technical sense of the word and he is not a soldier also in the technical sense of that word.

  • http://reverendjimcracker.spaces.live.com CodeRedinPA

    N/T

  • attitudesandmedia

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  • mosander

    I’l bet he won’t want his trial public! See http://prosecuteobama.org/

    There is a mountain of evidence, but “discovery” will reveal much more. All this talk of transparency is a ruse. Certification of live birth is a forgery. Obama and his people put on the web. Gibbs actually said, “We put it on the internet.” For all those that think this will ‘destabilize the country’, well, how much more destabilized can it get? Shall we just knuckle down to tyranny? Three more years of this we won’t even be a country – just a 3rd world muslim country with Christians in hiding and all our wealth stolen. Patriots unite!

  • astrolite

    Realize–Obama puts ONE muslim on the jury (and supposedly he has a right of a jury of his peers) Lots of them in NY City-the infamous NY Taxy drivers, and the “not unamomous vote lets him go free , to sue US and what a joke! Do you trust Obama or any other NY lawyer?? Cut off his head—-they seem not to object to that! And then throw his carcase in the dumpster with the rest of the garbage! Neither he nor his body are entitled to any respect! Then get on with the business of deporting all of those radicals whose religion ordains the death of others soley because they won”t convert!

  • lightfootletters

    I was under the impression that Democrats were in charge. If you mean Democrats, say Democrats. The Democrat’s ‘Fair’ Trail. With a couple of exceptions it’s either Democrat or Republican. You sound like some partisan hack professor on campus.

  • dclamage

    KSM is a saboteur and a war criminal.
    GW Bush tried to prosecute KSM in a military tribunal, but was constantly thwarted by a barrage of Liberal lawyers.
    The reason Holder claims he didn’t consult with Obama but merely told him of his decision, is “plausible deniability.” Protects Obama.

    This show trial is really about two things:
    1. Fishing expedition to dig up enough evidence to try GW Bush and Cheney in an international court as war criminals (to satisfy the MoveOn.org nuts);
    2. Distract us from Obamacare’s lightning-fast passage through the Senate.

    3. (possibly) to deliberately provide significant intelligence to the enemy. Obama fundamentally has a problem killing other Muslims.

    So, be diligent. Call your Senator and tell them Obamacare is fundamentally flawed and perhaps unconstitutional; and you want them to shoot it down.

    Continue to build up public awareness of the inherent flaws in Holder’s decision AND Obamacare.

  • The_Gadfly

    A fair trial is one in which those who break the law are convicted of it, and those who have not are not. Given that KSM has not merely confessed but loudly professed his involvement in the attack, there shouldn’t even be a trial. He should go directly to the firing squad, do not pass court, do not collect intelligence information that will compromise future information gathering by the US.

  • dclamage

    After WWII, after all sides had deliberately targeted civilian populations for wholesale destruction, we all (except the Muslims) signed an international treaty saying we’d never do *that* again.

    A war criminal deliberately blends in with the civilian population, to evade detection, attack like cowards but with some impunity, use civilians as human shields (like when Saddam Hussein unsuccessfully attempted to protect his Command and Control bunkers), and possibly to evoke the ire of civilians “unfairly” caught in the middle (like the Haditha incident and many Predator strikes in Afghanistan).

    In contrast, while during the Revolutionary War, civilians and soldiers may not have worn uniforms, they always carried their weapons openly and engaged armies on a field of battle (from behind trees and logs, to be sure). If the British army caught an armed civilian attacking their soldiers, they were usually summarily executed as saboteurs.

    A war criminal also is someone who deliberately targets civilians for attacks. Everyone one of those suicide bomber attacks are war crimes. They target mosques, markets and civilian gov’t buildings. They aren’t necessarily attacking the foreign invaders they seek to expel. Attacking civilians in the name of Jihad is inexplicable and unconscionable.

    Obama is ignoring the fact that we are at war (the Islamicists against us for 30+ years. us against them for 8). Hence, every one of those combatants who deliberately through their own behavior fail to fall under the protection of the Geneva Convention should be tried as saboteurs or war criminals (depending on what they’ve done) in a military tribunal.

    If they were really soldiers, then we would rightfully inter them in military POW camps until hostilities ended. We would have to treat them as POWs; no waterboarding and enhanced interrogation techniques for them. No need to try them in a military tribunal, just for being a member of an army.

    The international community needs to modify the Geneva Convention to explicitly state that these terrorists are war criminals and therefore enjoy no protections; they should expect military justice and a swift execution if warranted.

    Leave the civilian courts to try your average civilian murderer who is motivated not by ideology but by their own special brand of anti-social insanity.

  • The_Gadfly

    so you’re trying to prove you’re cool by mobying on one of those wing nut boards?

    You’re the poster with the one note opera. Eric is using the appropriate terminology. In this case the right-left comparison is more appropriate than the Rep-Dem one. Most Rs are right, most Ds are left but it isn’t 100%. But all lefties want the civil trial and all conservatives want military tribunals. And both want those ends for precisely the same reason: discovery in civil court will either undermine the ability of our intelligence and possibly military personnel to do their jobs, or undermine our ability to convict KSM of a crime for which we already have his confession.

  • merryj1

    Remember the phrase, “Never let a good crisis go to waste”? Well, how about a predictable crisis that will enable this Administration to declare marial law? Might be one way of shutting down the 2010 election reckoning.

  • merryj1

    That would be “Martial Law.”

  • mschmitt

    … when Bush took office. To be intellectually honest, I’d like to say that this thinking is as silly now as it was then; but then I remember that Bush never actually advocated for the overthrow of the rule of law to enable the entrenchment of a dictator (so far as I know) as our Dear Leader, Jr. did in Honduras.

  • lightfootletters

    ” mobying on one of those wing nut boards?” Have no idea what this means.
    But to say using a meaningless term like left or right rather than a more specific term Democrat or Republican is misleading at best. I’m a liberal and I’m not on the ‘left’ except in the world of Erick.
    “civil court will either undermine the ability of our intelligence and possibly military personnel to do their jobs, or undermine our ability to convict KSM of a crime for which we already have his confession.” Accurate statement.
    This is also accurate. ” Civil courts require miranda right be observed. It would seem that all evidence acquired before the accused, Khalid Shaikh Mohammed, was read his miranda rights would not be admissible in civil courts. Miranda rights would apply or this is just a show trial staged by Attorney General Eric H. Holder Jr., and the Obama administration. from a previous post, NYT, Huff, Red State. So much for the left and the right. Just for the record; There is not a dimes worth of difference between today’s Democrat and Republican politician. There are exceptions like Ron Paul of Texas, Sara Palin of Alaska and Tom McClintock of Calif. whom I personally admire.

  • Leopard1996

    Could you enlighten us with your sparkling wisdom what your point is.

    It is the civil libertarian left wing that wants to proscribe rights to this savage that should be put down like a rabid dog.

    Or are you here to admit right now you aren’t happy with O-dumbass because he hasn’t made this country statist enough for your standards.

  • The_Gadfly

    I knew he wouldn’t give a straight answer (nobody who has followed politics for the last year can’t know what a “wingnut” is), but I wanted to see what he is made of. Now we now know he’s a Paultard, so he’ll eventually do himself in.

  • Leopard1996

    Although I did put my protest vote in for Ron Paul when the primaries came my way because McCain was too much of a squish, and we had no other choice by the time Ohio had their primaries, but as far as taking him seriously, I truly could not, and I consider my self a libertarian.