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Go Home People Seem To Have Forgotten The World Trade Center (And...

THE SPINE NOVEMBER 20, 2009

People Seem To Have Forgotten The World Trade Center (And Pentagon) Massacre. So The Obama Administration Will Now Have Provided Us With The Ultimate Reminder of Islamic Terror. Good!

BY MARTIN PERETZ

I understand why the universe of cons and neo-cons has pounced on the Obamae for prosecuting K.S.M. in civilian proceedings in New York. And I find Charles Krauthammer's particular indictment of the venue and legal envelope of the proceedings strong, if not (entirely) persuasive.

But I actually think that a public trial several blocks from the scene of the atrocity will etch into (much of) the world's consciousness the intrinsic brutality of the whole ideological system that inspired and brought discipline to that day of terror. It will also remind the great public that the same system still brings near-daily bloodshed to innocent populations virtually everywhere. 

This is also likely to evoke from the millions and millions of enthusiasts of true jihad demonstrations of fidelity and enthusiasm. That is also a good thing. Otherwise, we will still be stunned every time Muslim terror strikes. A very bad thing, indeed.

Travesty in New York

By Charles Krauthammer

Friday, November 20, 2009 

For late-19th-century anarchists, terrorism was the "propaganda of the deed." And the most successful propaganda-by-deed in history was 9/11 -- not just the most destructive, but the most spectacular and telegenic.

And now its self-proclaimed architect, Khalid Sheik Mohammed, has been given by the Obama administration a civilian trial in New York. Just as the memory fades, 9/11 has been granted a second life -- and KSM, a second act: "9/11, The Director's Cut," narration by KSM.

September 11, 2001 had to speak for itself. A decade later, the deed will be given voice. KSM has gratuitously been presented with the greatest propaganda platform imaginable -- a civilian trial in the media capital of the world -- from which to proclaim the glory of jihad and the criminality of infidel America.

So why is Attorney General Eric Holder doing this? Ostensibly, to demonstrate to the world the superiority of our system, where the rule of law and the fair trial reign.

Click here to read the rest.

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123 comments

I wonder what Cass Sunstein thinks about it.

- noga1

November 20, 2009 at 8:39am

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Or perhaps the better question is this: Who cares about Charles Krauthammer thinks? One would think that reading marty peretz - who, even by his woeful journalistic standard, been particularly unhinged by the Hasson incident - would offer readers quite enough sour, unrepentant, neoconservatism for any deficient liberal.

- MrCookie1

November 20, 2009 at 9:18am

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It's interesting that Krauthammer seems so exercised about the faulty logic in trying Mohammed in a civilian court for 9/11 while "sending Abd al-Rahim al-Nashiri, (accused) mastermind of the attack on the USS Cole, to a military tribunal." "By what logic? In his congressional testimony Wednesday, Holder was utterly incoherent in trying to explain. In his Nov. 13 news conference, he seemed to be saying that if you attack a civilian target, as in 9/11, you get a civilian trial; a military target like the Cole, and you get a military tribunal." Actually, this is quite coherent -- you plot the murder of American civilians on American soil, and you will be tried in civilian court as a common criminal. You plot the murder of American sailors abroad, you can be tried in a military tribunal since the nexus between the American civil justice system is that much more remote (and your acts are that much closer to military actions that violate the laws of war rather than simple acts of murder). For example, we didn't insist on trying Sepp Dietrich in an American courtroom for the Malmedy massacre or press civil indictments against Libyan agents who planted bombs in Berlin cafes that killed off-duty GI's. We're also not generally attempting to try non-US citizens in civil courts for fighting with the Taliban.

- wildboy

November 20, 2009 at 10:29am

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At first, I was agnostic about the trial, in fact since KSM was tortured viewed it as Constitutionally problematic, but the reaction of the right, in their sniveling cowardice, is unbelievable. Yes, I suppose the Nuremberg trials were a great propaganda victory for the Germans, and we all know how the trial of Timothy McVeigh led to a great uprising of right wing lunatics (no, for that we needed to election of a black Democrat). The trial is not supposed to have anything to do with demonstrating our superiority (the superiority is inherent in the system, provided we actually use the system), it is bringing a loathsome monster to justice, to have him face the American people not in some dark tribunal but in the light of one of America's greatest places, an American Court. In fact, I think giving him a military trial accords KSM a respect not due him. He was no soldier. Cookie, at least Marty is in favor of a public trial. He hasn't totally gone over to the dark side.

- blackton

November 20, 2009 at 10:34am

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Marty must be doing something wrong, because I agree with him almost entirely here! Except for his assessment of Krauthammer. The only thing that Krauthammer's piece persuades me of is that he is an unpatriotic coward who honestly does not believe that the United States and its values are strong enough to stand against the jihadist supermen. History, to Krauthammer, is on the terrorist's side, and all that stands between civilization and inevitable doom is our ability to prevent captured terrorists from speaking in their own defense. (Which should not be a surprise; Krauthammer numbered among the many Cold Warriors who felt that history was on the Soviets' side, based on a perverse admiration for the supposed strength of the totalitarian system versus the inherent weakness of free peoples.) If one happens not to be a coward, or if one happens to have even the slightest bit of faith in the greatness of America and our values, one can have no reaction to Krauthammer's fearful chicken-littledom than some mixture of pity and disgust. The man, and those who join him in his craven and anti-American stupor, are contemptible cretins, and it causes me almost physical revulsion to know that such people number among my countrymen. The trial is our vengeance, and part of our revenge against these thugs is the magnanimity with which we extend to them despite their evil the considerations that mark us as civilized men and them as barbaric animals. And when they meet our punishment, it will be on our terms through a process that demonstrates our nobility and greatness in contrast to their callous but futile evil. Contrary to Krauthammer's defeatist epistle, the only propaganda danger would be if KSM didn't rave and plead during the trial, which is in effect a march to the gallows. Most would-be martyrs have disgraced themselves, and their causes, by doing so. Only men who face their judge or executioner with calm quiet and dignity, like King Charles or John Brown or Nelson Mandela, pose any propaganda threat. To paraphrase perhaps the best thing George W. Bush ever said, KSM may have had the first word in New York City, but by bringing him to justice, proving his guilt, and punishing him, we his victims get the last word. The trial is our chance to demonstrate once and for all that KSM and his ilk are not the godly supermen that the terrorists imagine and that Krauthammer believes, but rather that they are tiny little men, jumped-up gangsters, men of such mean stature that their final place in history will be the oblivion of a common criminal, buried eventually in an unmarked grave in some unknown prison-yard potter's field.

- rhubarbs

November 20, 2009 at 10:59am

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Commentary about justice delayed is commentary about justice denied. It's about time this issue got vetted around here. I only have time for now to reiterate that the Kraut is perhaps America's best political opinion journalist and his short piece is for me entirely persuasive. I have been waiting with bated (not as I first thought "baited") breath to discuss what a terrible, terrible decision Obama/Holder made on this one.

- basman

November 20, 2009 at 12:27pm

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basman, what exactly did you find persuasive? was it this nugget? "Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning." The same could have been said about Jeffrey Dahmer, Timothy McVeigh, etc. Letting justice run its course is no farce, it is what separates us from barbarians. Not every trial is to determine guilt or innocence, or did Krauthammer truly believe there was a chance that Dahmer was going to be declared not guilty? Good lord, if Krauthammer doesn't know this, then the man is truly lost. Finally, we don't even know it will even go to trial, KSM might be so broken he might simply plead guilty. Did Krauthammer ever once consider this possibility, not that I could see, instead he wallows in his own cowardice and proclaims it virtue.

- blackton

November 20, 2009 at 12:44pm

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Yes, agreed. We should prefer a criminal trial, as we did with Moussaoui, because it is fair and open and will do the job. (I believe that he's admitted the crime, and not under duress. He will likely take credit during the trial.) There is dignity in observing the rule of law when we would really rather not, and corruption in succumbing to our preference to let all that slide this time or that time. That's what it means to be ruled by law. We have heard that we can expect ranting and raving, and that KSM will try to turn the proceedings into a circus. Let him. I find it thrilling to see the great villain made ridiculous before the sober forces of a great civilization that is decidedly unimpressed. To quietly dispose of KSM under an ex post rule book would merely prove our power. To dispose of him in the light of day, according to the rule book long used for common criminals, master criminals, and, yes, terrorists alike, would justify our power.

- jhildner1

November 20, 2009 at 1:00pm

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I don't see why the Kraut is a "coward" for suggesting that this is the wrong way to go. Military tribunals, such as Nuremberg (sic), would be the better place to try these people, IMHO. I write not just as a lawyer, but as a former intelligence officer. The lawyers for KSM, et al., will not be potted plants. There could well be the compromise of intelligence sources and methods, there was during the Blind Sheik trial in the 90s. Such compromise would be injurious to national security, and I would oppose federal criminal trials on that basis. If we insist that people who are rounded up on the battlefield get access to US courts, does it follow that they get access to US constitutional rights? Miranda warnings? No? Why not? Your logic certainly takes you in that direction. I also take issue with the idea that, if Tim McVeigh had been acquitted by a jury of his peers, he would have been incarcerated nevertheless. Really? On what basis? Would he not have been found not guilty, and been set free? It's not a question of the strength of our values or system. Of course we can handle these clowns. The real question is in which forum, and I choose military tribunals. I don't think that makes me a coward, but I'm willing to listen.

- butchie b

November 20, 2009 at 1:43pm

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butchie, ksm was not rounded up in a battlefield, the guy was in a Pakistani city in an apartment. Taliban soldiers who committed war crimes, give them military tribunals. KSM confessed to this crime while he was still in Pakistan, boasted about it. There is not a snowball's chance in hell he will be acquitted, and not to try him because of craven fear (oh, he will speak, oh suddenly jihadists will materialize and blow up the courthouse). The mutts lower down the food chain, I have no problem keeping them locked up as POW's until the cows come home, the only thing I say is move them from Gitmo to Johnston Atoll (a territory of the US). I got nothing against military trials, nor do I assume that they will not be fair and impartial, and if you want to give the majority of the detainees military trials, go ahead. But the hysteria of so many Republicans is sickening. KSM's guilt is certain, there will be no risk of leaking classified data, the guy freaking confessed. There is no reason not to have him face American justice without the trappings and honor that is conferred in a military trial.

- blackton

November 20, 2009 at 1:58pm

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Butchie, I think that Jim Comey and Jack Goldsmith (two guys who know more about military justice and criminal law than Krauthammer, WADR) make a pretty convincing case on the same WaPo op-ed page that an ordinary criminal court is the appropriate venue for KSM. http://www.washingtonpost.com/wp-dyn/content/article/2009/11/19/AR2009111903470.html?hpid=opinionsbox1

- wildboy

November 20, 2009 at 2:15pm

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here is another choice nugget: Really? What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place. Yes, I love that article where when Jeff Dahmer was captured and the prosecutor guaranteed conviction, that Kraut indignantly wrote that the prosecutor was ignoring the possibility that the victims chopped themselves up and then cooked their own remains and made Dahmer eat the bodies. Freaking no one anywhere believed for the remotest second that Dahmer would not be spending the rest of his life in prison, not his defense lawyers, the only question for him was would it be in a prison for the criminally insane or a regular prison. The only thing about these trials I find problematic is the torture. KSM confessed before hand, but I don't know about the other high ups. But the lesson here should be: Don't torture, not torture so that a trial will be impossible. One more piece of idiocy: By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal? members of the resistance against Nazi Germany were well within their rights to kill German soldiers who occupied their country, and we regard them today as heroes. A same resistance fighter who sneaks into Germany and slaughters German women and children, we would regard as a monster. When we captured Iraqi soldiers we treated them as POW's, even though they themselves did not adhere to the Geneva conventions. If you flat out attack the US military in a war zone, you should be treated as a soldier provided you don't commit a ruse of war, in which case you are a war criminal, subject to military law. KSM and Al Qaeda are not soldiers, they don't deserve to be treated as such.

- blackton

November 20, 2009 at 2:24pm

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Black - the feds under Holder have reportedly gone in with "clean teams" and re-gathered every bit of evidence without torture so nothing will be tainted. It remains to be seen whether the judge will allow information on past torture, especially when this clown happily confessed again. I have no opinion on that except that hiding under the ned about ANYthing seems cowardly, get it all the hell out there. But they have emails galore, lots of evidence I hear. It should be pretty air tight, like the 300 other cases against terrorists that have been successfully tried in federal courts. But any trial is a risk, the Keystone Cops that were the lawyers in that dirty bomb case in Chicago blew chow all over the place ( I know one of the lawyers - a seriously dumb right wing ideolouge). But there are risk free trials all over the world in corrupt countries with no credibility, some junta says what's going to happen and it does. We respect our Constitution enough to do what it tells us to do and what we've done for 200 years. Enlightenment principles matter more than fear and loathing any day. I know this will set off our head drama queen hide-under-the-bed-torture-anyone-who-even-looks-Arab snarling fool: Marty. So I particularly relish saying that I hate when I watch the drama queens hector on - with quivering lips - about how we're "at war" with these people, I gagged when Holder said it although I know he had to. Barf. These particular goons are vicious two bit thugs who I would never elevate to the level of a soldier or even give them some sort of grand title like "terrorist." They are stupid, dumbshit murderers, period. Low down criminals who deserve to be treated like the common dirt they are. They LOVE being called terrorists and being treated like soldiers - it makes me sick. I won't do it anymore. Oh and thanks for reminding me of 9/11 Whimpering Queen Marty - I WAS almost forgetting about the two friends I had that died, the fact that my husband ran for his life, the stink that came in my windows for weeks, the traumatized firemen and their families I STILL treat.

- WandreyCer

November 20, 2009 at 4:55pm

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damn straight wandrey, Rep. Shedagg of Arizona went so far as to threaten Bloomberg and his daughters with kidnapping (and worse) if they trial were to be held there. I have to admire Bloomberg for his restraint because I would have launched so much profanity at that cretin from Arizona. Amazing how none of the fear is coming from NY'ers but from Repubs. that live far, far away from the venue. They are actually worse than cowards.

- blackton

November 20, 2009 at 5:02pm

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I'm sure it was Bloomberg's daughter who asked Dad to hold his fire, she's a class act - as is Bloomy. Let's just call Rep. Shedagg Rep Shitbag, shall we?

- WandreyCer

November 20, 2009 at 5:09pm

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Even if KSM wins some kind of "propaganda victory" (I wonder what it could be? Perhaps he could convince some Arabs and Muslims and maybe Louis Farrakhan also to hate America -- whoop-de-doo!) he should still be tried in federal court as he is a criminal and not a soldier. We don't decide to prosecute or not prosecute in this country on popularity grounds -- Martha Stewart can testify to that -- and no so-called victory is going to prevent KSM from going down down down, following in the path of McVeigh and Muhammed the DC sniper. Krauthammer has become a whiner in a suit -- he's not stupid, he knows better, but he can't bear to say anything positive about the Obama administration so he joins the GOP knucklehead chorus.

- ironyroad

November 20, 2009 at 6:14pm

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I think Holder has made a huge mistake here. There are so many potential problems it's hard to know where to start. Perhaps the Defense requests a change of venue. Most Judges would allow that. Then if the Defense is any good they request all the documents available in the 9/11 files. Half a million pages later they delay the trial by a year or two reviewing the documents. Terror attack half way through the trial, perhaps an attack on a Juror. Confusion regarding the co-defendants and who did what. Excluded evidence from Gitmo and the prosecution reading from heavily redacted documents. Which is why we have Military Trials. To avoid defense mischief in a US Court.

- CRS9TNR

November 20, 2009 at 8:01pm

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Which is why we have presiding judges CRS9TNR. I'm sorry, but your scenario is hysterical. It presumes no judge, no Ray Kelly's NYPD that has protected NY for eight years, no evidence gathered without torture. Um, wrong city, wrong Justice Dept, wrong reality.

- WandreyCer

November 20, 2009 at 8:45pm

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CRS9: "There are so many potential problems it's hard to know where to start." There are potential problems in everything we do, as individuals and communities and nations. Here the problems are greater by far than some things -- the Mob isn't going to bomb a courthouse where there's a trial of one of their leaders going on -- but less by far than other things, such as invading countries on weak or non-existent evidence or allowing the NRA to dictate weapon control legislation for the nation. Some of the potential problems may come to pass in reality. Others won't. The result will be a conviction in open court for a major criminal indictment -- murder in several thousand counts, which is exactly what KSM should be on the receiving end of. Security will be a problem, but there will also be advantages to be gained: a process that shows what we're about as a country. I believe, in fact, that the psychological relief of a conviction of the mastermind behind 9/11 will be considerable, and a vindication of our capacity as a nation to do the harder thing sometimes.

- ironyroad

November 20, 2009 at 9:04pm

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"The result will be a conviction in open court for a major criminal indictment -- murder in several thousand counts, which is exactly what KSM should be on the receiving end of. ...a process that shows what we're about as a country. I believe, in fact, that the psychological relief of a conviction of the mastermind behind 9/11 will be considerable, and a vindication of our capacity as a nation to do the harder thing sometimes." According to wiki: "The term show trial is a pejorative description of a type of highly public trial. The term was first recorded in the 1930s.[1] There is a strong connotation that the judicial authorities have already determined the guilt of the defendant and that the actual trial has as its only goal to present the accusation and the verdict to the public as an impressive example and as a warning. Show trials tend to be retributive rather than correctional justice. Such trials can exhibit scant regard for the niceties of jurisprudence and even for the letter of the law. Defendants have little real opportunity to justify themselves: they have often signed statements under duress and/or suffered torture prior to appearing in the court-room." What Irony said about a fair trial resulting in conviction is exactly what Stalin planned for his accused. Consider the facts as they are known today: that KSM's confessions were indeed obtained under "duress", that there is an expectation of conviction, that it will be a show trial. This trial will end up disgracing the US, and not be "a vindication of our capacity as a nation to do the harder thing sometimes." Imagine a judge presiding over a trial in a democracy like the US, knowing full well that he is supposed to direct a trial towards a conviction. How is he going to uphold the defendant's full rights without throwing the case as soon as the lawyers introduce the illegally-obtained confessions? What judge will risk his reputation and standing in overruling such an objection so foundational to your system of justice? I heard Bill Press opine that even if KSM is found not guilty, that as soon as he steps out of that court he will be lynched. He said it approvingly. So he would rather have the law of the mob than the law a military court, in which an accused has rights, and a legal procedure is observed. Say what you will, IronyRoad, there is an unbridgeable gap between the principle of a fair trial and what is expected of this trial. Obama's rationale in having this trial is simply undecipherable.

- noga1

November 20, 2009 at 10:30pm

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What's Obama got to do with it? I might be wrong, but it seems to me a decision by the AG and the Justice Dept based on their assessment of the legal and constitutional facts.

- ironyroad

November 20, 2009 at 11:09pm

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I should perhaps add that I'm not entirely dismissing your criticism, Noga, but I have to dispute its accuracy, at least in part. Where's the show trial here? This is the guy who planned the 9/11 attacks, and I'm pretty sure the Justice Dept wouldn't have gone forward with the planned indictment unless they had a lot in the storeroom. Trials aren't just an adversarial mechanism with a roll of the dice for the verdict -- they are also a way, in a situation where the evidence is clear, for laying out the what and the why of a major crime, and its consequences. I think 'show trial' is a glib phrase for which there's no basis for implying that's what we're about. The military commissions are also capable of a not guilty verdict, incidentally, or a mild sentence, and they have taken place, e.g. with OBL's driver. But this case involves the major terrorist attack in the U.S. in modern times, and making sure it's the subject of a criminal procedure is politically important. Al Qaeda aren't soldiers and this rams the point home.

- ironyroad

November 20, 2009 at 11:27pm

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Ok, a major conviction will show the world that we are a nation of laws and that we are capable of justice. KSM never set foot in America and was abducted in Pakistan by the CIA/Military. This means the evidence against him is circuimstantial. The prosecutors will need to build a case for average Americans where every single piece of evidence needs to be translated from Arabic to English. Every association with co-defendents will need to be explained in terms of Arab customs. All travel will need to be put into context of training camps and meetings which will seem millions of miles from New York. This confusion and challenges to this type of case will be reported and will lead to more confusion. Imagine KSM in the Plexiglass Box and the trial of Saddam Hussein. The AG told the world, probably a year or two before the trial that failure is not an option. Any eventual conviction will be dismissed by the rest of the world.

- CRS9TNR

November 21, 2009 at 8:43am

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What seems to have gotten completely lost in this federal v military court argument is that the Obama administration is finally planning to prosecute these criminals. I find this to be a refreshing and much needed development. As I listen to radio comments from the usual No crowd, and gag through another peretz approved Krauthammer pile, this point seems to have been completely lost. What I have seen from Obama, in health care, climate change, and with this issue, is that his administration appears to be resolved to settle issues, rather than kick the can, to use the phrase of the moment, down the road, awaiting another election, the "better moment" etc. Garry Wills, in a fine piece in the latest NYRB, comments on this Obama quality and how it could jeopardize his chances for a second term. Also, on a side note, it is unsettling to read from these comments, how little faith there is in the American system of justice. How sad.

- MrCookie1

November 21, 2009 at 8:54am

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IronyRoad: I still don't get how you can reconcile the notion of a fair trial with a certain conviction. I have noticed that in the case of Hasan you go to great deal of trouble reminding us all that there is a presumption of innocence in this country of yours. you have explored every aspect of what legal innocence means in your attempt to stick to this assumption, for Major Hasan. I also notice that this consideration is completely absent in KSM's case. If a fair trial is your suit, shouldn't you be taking pains with maintaining that presumed innocence premise, as well? Shouldn't we talk about KSM's mental state and any other mitigating circumstances, such as the fact that his confessions were extracted during more than 200 waterboarding appointments with his investigators? I can easily foresee a mini-trial within the framework of this trial in which the efficacy of torture will become the issue to be resolved, with the prosecutors contending that torture is indeed useful in obtaining essential life-saving information. And the judge will be called upon to make a decision condoning it within the law. And if the nightmare result will take place and his case will be thrown out based on that single technicality, wouldn't you be blaming the Bush administration for the failure rather than those who decided to give him a trial in which he is fully entitled to be exonerated? BTW, do you really think Obama had nothing to do with decision?

- noga1

November 21, 2009 at 9:26am

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CRS9TNR - as I eat my challah bread and honey for breakfast, I can only marvel at the hysteria. What you mention sounds like 20 minutes of court testimony, maybe 30. I'm sure any of our outstanding federal judges in New York will, as judges do, keep things moving along, just as they have with these cases many times under several Presidents, including W. Why do plexiglass boxes cause you so much anxiety and fear? They make New Yorkers yawn. I'll go so far as to say most of us won't pay much attention to the trial. I might because I love the law, but most of us have lives to live. You need to man up, friend - get in touch with your inner Queen Mary who refused to leave London with actual bombs killing actual people raining down around her. This cowardice is an embarrassing display and it only makes New Yorkers more determined to show what we're made of. And what people in other place are clearly not made of. As far as annoyong speeches by an idiot thug? Why don't I speechify a bit for you right now so you'll become numb to it: "Hate America, yadda yadda, imperialist dogs, yadda yadda, Caliphate, yadda yadda, death to Infidels, yadda yadda, Allah Akbar, yadda yadda" repeat. Scary stuff huh? We should definately trash the Constitution to avoid it. (I was just thinking he same thing his morning Cookie - Obama's ornery integrity may cost him, Americans are simply not used to it, probably don't want it and may not even recognize it. I admire him so much).

- WandreyCer

November 21, 2009 at 9:34am

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"as I eat my challah bread and honey for breakfast, I can only marvel at the hysteria." Challah is bread. To say challah bread is redundant. It's like saying egg bread bread. And what's your challah got to do with your marvel at the hysteria? Is there any mystical and tenebrous connection between challah and marvel? Is a challah an antidote for hysteria?

- noga1

November 21, 2009 at 10:31am

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sorry noga, my baker will kill me. He's on Amsterdam. challah is soul food and I love it. I love Jewish food, I have some of the best in the world here. We eat it constantly.

- WandreyCer

November 21, 2009 at 11:06am

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Curiouser and curiouser: "...my baker will kill me. He's on Amsterdam."??

- noga1

November 21, 2009 at 11:33am

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Its called friendship noga, you might want to look it up.

- WandreyCer

November 21, 2009 at 12:51pm

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Mr. Cookie, KSM Prosecutions started in June, 2008 in a Military Court, which is where KSM wanted to plead guilty. President Obama did not just start this. He stopped it. Now he is restarting this in his own way. Had his administration not stopped the proceedings shortly after their election, this probably would be over by now.

- CRS9TNR

November 21, 2009 at 12:54pm

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test

- enricopalazzo

November 21, 2009 at 1:09pm

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I believe NYC and the Federal Judiciary can handle this so-called "trial of the century." Why so-called? I suggest the REAL "trial of the century" was the Rosenberg Atomic Secrets Trial. Remember, Judge Irving Kaufman, from the bench, accused the Rosenbergs of responsibility for the Korean War, by giving secret atomic bomb information to the USSR. The Rosenbergs were the first to be executed by the USA for espionage. If Judge Kaufman is to be believed, than it follows that the Rosenbergs were responsible for the death of 54,229 American servicemen and 103,248 wounded; not to mention the South Korean and allied death toll. The Rosenbergs were Jewish-American Soviet spies and KSM is an Islamic terrorist. I don't wish to compare apples and oranges, but the comparison does pose the question, "Who posed the greatest threat?" In the hysteria of the moment, Drs. Kraithammer and Peretz, may be engaged in hyperbolic ventilation. If the Foley Square judiciary could handle the Rosenberg case, it can successfully prosecute KSM. After all, the entire weight of the International Communist movement sided with Julius and Ethel Rosenberg and apparently justice prevailed. Do the jihadists pose a greater danger to our country than did the agents of Stalin?

- LawrenceGulotta

November 21, 2009 at 1:40pm

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Noga, if we were to proceed on your grounds, we'd never have had the Nuremberg Trials or the Eichmann trial. I'm not sure what you mean with your reference to Hasan -- most of what I commented on in that connection was investigating the roots of that case, not trying it. As far as the latter goes, I am assuming that he will receive the normal court-martial proceedures: an Article 32 hearing, followed by a General Court-Martial. Nothing abnormal there. In re KSM in court, I have confidence in the federal judiciary, and -- unless things turn out very badly, which still wouldn't make it a wrong decision -- I don't believe the AG and the Justice Dept would go into court with a weak case. I'm pretty sure Obama didn't have much to do with the decision, but obviously I don't know. However, he clearly didn't want the CIA investigations, and the AG went on with those anyway, so the evidence points to a hands-off relationship with Holder.

- ironyroad

November 21, 2009 at 2:13pm

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Noga, something completely different: Unbidden, the word "noganote" popped into my brain a little while ago. That was from the CR board, right? And it wasn't something you used but rather was a directed comment to you from . . . whom? The poster who lived in Seattle or WA somewhere and taught ESL, was that it?

- ironyroad

November 21, 2009 at 2:38pm

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Irony, finally, somebody brings up the Eichmann trial. I was scrolling down and about to name-check him, but you got there first. In his "plexiglass box," no less--props to you, Wandrey.

- MOLLYSIMON

November 21, 2009 at 4:37pm

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"Noga, if we were to proceed on your grounds, we'd never have had the Nuremberg Trials or the Eichmann trial." Each of these two cases aroused strong objection at the time and after. In fact according to Arendt, the Eichmann's trial was so flawed that she wrote an entire book about it, showing how a perfectly guilty as charged man did not receive a fair trial. Her main beef with Israel's judiciary was that the trial served Ben Gurion's propagandistic interests more than any notion of justice. The same accusations were leveled at the Nuremberg Trials. So as you can see, there is nothing new in your quoted statement above. Only reiteration of what has been already known and disputed for a few decades now. You won't find me agreeing with Arendt even though I would not object to her insight into Ben Gurion's schemes aimed at boosting Israel's nation building and ethos of never again. He had as noble a reason for turning this into a show trial as the architects of the Nuremberg trials. What is Obama's excuse? "...a process that shows what we're about as a country."? Or is it more like ...a process that shows what Obama is about? (Sorry, I know you can't deal with any criticism of your chosen leader but I really think he is making a grave mistake in this decision and for such a calculated cautious person as he is, I wonder what could his reasons be.) _______ The poster you have in mind was eM. He lived in Seattle and was a poet , author, and he also sometimes taught English. He addressed me as you recall but he used the same formula to address others as well.

- noga1

November 21, 2009 at 4:46pm

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I took something rather different from Arendt's book. But did you read the point I made about the evidence -- i.e. not just my opinon -- tending to show more of a hands-off relationship between the WH and Justice? It seems to me you're the one with the fixation on Obama, Noga. _____________________________ Ah yes. eM.

- ironyroad

November 21, 2009 at 5:01pm

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Also, a "show trial" is a court process, usually carried out under an authoritarian or dictatorial system, in which people are indicted on either trumped-up or purely ideological charges before a political judiciary. Neither Nuremberg, nor Eichmann in Jerusalem, nor the proposed KSM trial were or are "show trials," and to suggest that that is what will take place in NYC is truly scraping the bottom of the argument barrel.

- ironyroad

November 21, 2009 at 5:52pm

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"...and to suggest that that is what will take place in NYC is truly scraping the bottom of the argument barrel." IronyRoad, I usually try to keep my own personal feelings about some of the arguments you advance out of my conversation, because I do not wish to give offense. You, it appears, are not bound by similar constraints. Since you cannot be bothered to take my arguments seriously and understand what I'm trying to say, which is somewhat unusual for someone as thoughtful as you, I can only conclude that your tender Obamic loyalties have been touched. Once Obama is criticized, you cannot hold yourself back from personal insults. And yes, I consider your comment that my arguments are dregs a personal insult. I got the measure of Obama and can no longer be surprised or bemused by any of his decisions. If you think this is fixation then sure, I have a fixation on Obama. It is no more than your fixation on George Bush, when you disagreed with every tiny movement he made. Except you called it "legitimate criticism".

- noga1

November 21, 2009 at 7:55pm

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noga "Obamic"? Humm, is this a play on "Islamic"? If so, then whatever respect I had for you as an Obama critic has evaporated. I am certainly cognizant that someone who reads and appreciates the Spine would not be a big fan of President Obama. But if you're one of this guys (gals?) who subscribes to this Obama is a Kenya Muslin brand of criticism, then you do not deserve respect from irony or anyone else. I hope that I am wrong because I appreciate your posts - you reminded me that there was a [belated] military tribunal started, your score - and would like to think that you are not an unhinged sly bigot.

- MrCookie1

November 21, 2009 at 8:23pm

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I merely wondered if you'd actually read the point I was making, Noga, that Obama may not have had very much to do with the AG's decision, as evidenced by the CIA investigations which he wasn't keen on, but Holder went ahead and initiated anyhow. Clearly you haven't. Or perhaps you have. It's difficult to say, as you make an assertion, I respond to it, and you don't address my response but rather repeat the original assertion. I do consider the "show trial" rhetoric to be scraping the argument barrel. Sorry. It wasn't meant to be a personal insult (I see you as more than your arguments), and I took your comment seriously enough to outline why I think the term is, at the very least, inaccurate. I didn't always disagree with Bush, incidentally, and even though I did oppose him 98% of the time, I found the left hyper-obsession counter-productive and definitely loopy at moments. I thought he was a general disaster as president, and Cheney more so, but everyone has their moments.

- ironyroad

November 21, 2009 at 9:03pm

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Oh, and feel free to tell me if you think my arguments are particularly weak, and, most importantly, why. I don't regard that as hostile, if it's done in a reasonably courteous tone. I think it's a legitimate area of discussion, and sometimes it can be very useful -- I mean, I think I generally summon up a good case but certainly I've stretched things at times too, and rethinking one's pitch isn't such a bad thing.

- ironyroad

November 21, 2009 at 9:09pm

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"...if you think my arguments are particularly weak, and, most importantly, why. I don't regard that as hostile, if it's done in a reasonably courteous tone" As in: "is truly scraping the bottom of the argument barrel."?? ____________ As for cookie, It takes an especially nasty and idiotic understanding to infer from "Obamic " that I mean it as a "a play on "Islamic" and that I am "one of this guys (gals?) who subscribes to this Obama is a Kenya Muslin brand of criticism". I mean, talk about a paranoidic conspiratorial mindset! Scary stuff. Apparently Obama is not to be laughed at! As for "whatever respect I had for you as an Obama critic has evaporated" -- I never solicited your respect nor would I consider any respect from someone of such weak and mean grasp of language as anything but degrading. A friend of yours, IronyRoad? Nice going.

- noga1

November 21, 2009 at 9:36pm

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Yes, the argument about Obama being behind the decision and, as you have already "taken the measure" of his presidency and found it coming up short, said decision is therefore a bad one, is weak. Barrel-scraping, in fact. The argument that some people (who? Neonazis? Intellectuals of one stripe or another) have think the Nuremburg Trials were "Siegerjustiz" and the Eichmann trial was a piece of political theater mounted by Ben Gurion is not especially stronger. They happened and their legacy is an important one. The argument that a conviction will amount to a "show trial" as it's a foregone conclusion has something to it, but the use of the term is loose and seems designed for polemical purposes, and thus the point gets lost in the noise. I've seen you do a lot better. But I have to say that the good arguments -- and there are some -- seem to be getting lost in the threnody of fear-mongering coming from the Republicans. I think the security argument is obviously one that has to be considered, but I cannot believe -- and I doubt you do either -- that this decision was reached without some serious thinking about the implications and getting input from the security professionals, including the NYPD.

- ironyroad

November 21, 2009 at 10:18pm

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Sorry! delete "have" in the first sentence of para 2

- ironyroad

November 21, 2009 at 10:22pm

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What can be learned from the Nuremberg and Eichmann trials in relation to the decision to prosecute KSM in Federal Court? There was propaganda value in each, including the Rosenberg trial. They were not "show trials" in the 1930s Stalinist sense of the word. Justice was done, in the main. Was the Nuremberg and Eichmann trials turned into three-ring circuses like Kraithammer predicts the KSM trial will be? Why such disdain directed at the Federal Court system. Most of the federal judges are Republican appointees. The idea of a military trial respecting the law and the rights of the accused seems to be overstated. What makes a military trial such a perfect court of justice? Have there been no miscarriages of justice under military law? I believe the hysteria directed at this trial has to do with the definition of the "War on Terror" and terrorism itself. We are at war with Islamic fundamentalists, worldwide. The attack on the WTC was an "act of war." By holding the trial of KSM in a Federal Court, the Justice Department is acknowledging that the horrible WTC attack was less than an "act of war." It was a crime, but not a military crime. The decision to try KSM undercuts, in Dr. Kraithammer's opinion, the rational of the "War on Terror" advocated by the previous administration. The Justice Department is saying KSM is an criminal, but maybe not exactly a war criminal. It is a thumb in the eye of former President Bush and his concept of terrorist as military combatant. The Nazi leadership including Eichmann committed crimes against humanity. KSM, it will be proven, rightly belongs with this group of misfits and monsters. Dr. Kraithammer and former Mayor Rudolph Giuliani are battling for partisan advantage. I'm sorry that Martin Peretz has joined their ranks. How silly to proclaim that NYC is not able to rise to this historic occasion. They sound like weak, old men, afraid of their shadows.

- LawrenceGulotta

November 21, 2009 at 10:24pm

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LG: "Why such disdain directed at the Federal Court system[?]" A very interesting question.

- ironyroad

November 21, 2009 at 11:19pm

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What about the pragmatic argument here -- which I don't think anybody has acknowledged -- that the civilian courts are a safer bet, legally speaking, for those whose guilt is easily proved, and so more effective. The Goldsmith-Comey Washington Post op-ed that wildboy linked to makes the argument that the military tribunals are susceptible to legal challenges that they are kangaroo courts. Goldsmith and Comey believe that a military tribunal in some form would be legal and constitutional for KSM -- others disagree -- but that the area is murky and subject in any event to challenge on all the untested particulars. A civilian trial, so long as the tried and true procedures are followed, is beyond reproach and not subject to similar challenges. So, when it's easy to convict in a civilian court, it's the safer choice. And lest you think that a conservative Supreme Court would always back whatever tribunal is chosen, remember that the conservative Supreme Court rebuffed several of Bush's choices in just this area. I'm not an expert on all that, but Holder and other lawyers in the Justice Department are.

- jhildner1

November 22, 2009 at 12:34am

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The fact that Holder (and apparently Obama) is supremely confident that there is sufficient evidence to convict KSM does not remotely undermine the principle of the presumption of innocence. The prosecutor is not supposed to presume evidence. It is the judge and/or jury that is to presume innocence. The prosecutor's role is to use all means consistent with due process to prove guilt. As to federal court vs. a military commission, I am still working through that in my own mind. But a response like that of Comey and Goldsmith is more helpful than the overwrought, partisan response of Krauthammer. And I agree with Cookie that the more salient point is that KSM and the others are in fact going to be indicted and tried, rather than imprisoned indefinitely without being charged or tried. A bigger issue is the disposition of the detainees we don’t believe we can convict but who we believe are too dangerous to release. There currently is no constitutional basis for holding them indefinitely without charging and trying them. Obama indicated many months ago that he was going to explore whether he could construct a constitutional justification for “preventive detention,” where such detention would be subject to initial and ongoing review by the courts and/or Congress. That would be better than simply leaving it to the executive branch to determine that some detainees could be held indefinitely without being charged or tried, but I am interested in what the constitutional argument would be.

- dhurtado

November 22, 2009 at 12:41am

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p.s. So the point is, at most, Holder had a choice of which forum to try KSM in. Generally, it would be easier to secure a conviction in a military tribunal than a civilian court, but, in this case, it's easy to secure the conviction either way. So, a deciding factor becomes how well the conviction is likely to hold up.

- jhildner1

November 22, 2009 at 12:43am

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Sorry, in the third line of my first paragraph I meant to say "presume innocence," not "presume evidence."

- dhurtado

November 22, 2009 at 12:44am

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noga, I find it ironic - no pun intended - that in your 7:55 pm post, you lament your undeserved wounds from irony's perceived personalization of the argument and how the high road is your province, apparently forgetting of course your linguistic scolding of wandrey's use of challah bread earlier on the thread. Then, in less than a heartbeat, you go street with my questioning of your unusual use of the bizarre "Obamic". I find your professed innocence a tad unconvincing. Then, contrary to your freshly minted high road scruples per 7:55, you then proceed to fire personal insults at me. As I said, I appreciate many of your posts but you have a very thin skin, which is pretty typical of the Spine habitué. You can't have it both ways noga, bleed all over the screen because you've been wounded by some mean Obama partisan, then proceed to do the same thing in practically the next breath.

- MrCookie1

November 22, 2009 at 1:55am

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Most of the GOP venting over the last few days -- as opposed to various posters' arguments here (butchie, Noga, etc) that have generally raised fair points -- consists of infantile fantasies and fear-mongering, with a helping of scorched-earth tactics as they see their beloved "war" trope begin to be replaced by something else. The security argument is, however, a genuine one. There is a distinct possibility of an attack somewhere in the world, not necessarily in New York, as a direct response to KSM in the dock. However, there is an ongoing Al Qaeda threat anyhow so the distinction between that and a heightened threat is what is at issue. I think we have to remain calm and not be panicked, which is apparently the opposite of what the Republicans want us to be. Yes there are dangers, but there are also plusses for a conviction in open court as opposed to a closed process in Guantanamo.

- ironyroad

November 22, 2009 at 3:17am

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IronyRoad: You said: "I merely wondered if you'd actually read the point I was making, Noga, that Obama may not have had very much to do with the AG's decision" Let me just say that the Obama comment I made came after "BTW", which generally means I'm just making an observation, not an argument. And I think you know that. Still you insist on calling it an "argument", as if it pertained in any major way to the substance of my position about the trial. It does not. It was just an opinion, en passant, expressing my deep scepticism about Obama's decisions. The fact that you turned it into an "argument" and proceeded to treat it as if it were the centre of my concerns has more to do with your sensitivity to the subject than with anything I said, whether qualitatively or quantitatively. Here is the thing: my position will stand whether or not Obama was involved in the decision to go ahead with the trial. It is the very act of bringing this arch terrorist to trial with all the rights that accrue to it that I find baffling, whoever decided to do it. It seems aimed at shooting oneself in the foot, for all the reasons that I have already articulated above and see not reason to re-write now. "I do consider the "show trial" rhetoric to be scraping the argument barrel. " It is a show trial nonetheless. The fact that the verdict is announced before the trial even begins means that it is done for show. Again, what can be the reason for such a strategy? What would be the good in such a trial? What are its benefits? Does it really have to do with "justice" or the victims? Or does it have more to do with what seems to be Obama's project of restoring US "shiny" image (something the US has not enjoyed since the day after the end of WWII)? What justice will be served by this trial, I'd like to know? As for Arendt, what you took from it and what I took from it does not necessarily mean we are in disagreement. In the past I agreed with what you declared to have taken from it when we discussed the banality of evil. But that was not the only theme in her book. She had other themes which were just as noxious and abrasive to Jewish and Israeli sensibilities and one of them, an important theme, was the way she expressed her contempt to Ben Gurion's policy in trying Eichmann so publicly in Jerusalem. But these are issues that belong in a completely different discussion.

- noga1

November 22, 2009 at 8:05am

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Noga said: "The fact that the verdict is announced before the trial even begins means that it is done for show." It is not true that the verdict has been announced. As I noted above, that can be done only by the judge and/or jury. Holder's certainty that he will obtain a conviction does not mean the verdict is pre-ordained. The judge will decide what evidence is admitted and the jury will decide whether the evidence supports conviction. If one were to posit that Holder somehow has the ability to control the judge and rig the jury, then indeed we would have a "show trial" on our hands that would not only serve no legitimate purpose but would be a travesty. But I see no indication that is true. On the other hand, certainty on the part of prosecutors that a defendant will be convicted is not a legitimate basis for dispensing with a trial. That would strike at the very heart of the American system of justice.

- dhurtado

November 22, 2009 at 10:54am

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Per dhurtado's excellent points, perhaps I am naive but I thought that getting these terrorists out of their permanent cells and into a courtroom, especially in New York, was not only long overdue but a form of poetic justice. That the right, which of course includes several Spine regulars, is so violently opposed suggests at least to me, that all their huffing and puffing is, when stripped of its embroidery, merely political and partisan in nature. It is not really about the prospect of long over due justice for the terrorists; it is about opposing how Obama goes about it.

- MrCookie1

November 22, 2009 at 11:14am

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Blackton: As to “this nugget”: "Moreover, everyone knows that whatever the outcome of the trial, KSM will never walk free. He will spend the rest of his natural life in U.S. custody. Which makes the proceedings a farcical show trial from the very beginning." The same could have been said about Jeffrey Dahmer, Timothy McVeigh, etc. Letting justice run its course is no farce, it is what separates us from barbarians. Not every trial is to determine guilt or innocence, or did Krauthammer truly believe there was a chance that Dahmer was going to be declared not guilty? Good lord, if Krauthammer doesn't know this, then the man is truly lost. Don’t you think the Kraut makes a valid point here quite distinct from your examples of McVeigh or Dahmer or whomever etc. Is? The paradox that your objected to sentence points to is this: one of the rationales for the civil trial is to showcase American justice, and shine a great brilliant light from unto the world ever winning more hearts and minds: not teachable moment, rather a teachable few years it would seem. What are the great hall marks of the administration of criminal justice in America? They are informed by the great protections that shield the accused, puny and naked accused, virtually powerless as against the might and resources of the state. They are manifest in the presumption of innocence, the right to face rules of law not men, the right to a disinterested disposition, to the policy preference that better 10 guilty men go free than one innocent man gets convicted and the entire panoply of civil rights and liberties enshrined in or emanating form your great Constitution. So as against the concern put to Holder and mounted in a critique mounted against the NYC decision, against even the remote but theoretically possibility that might not only he escape conviction on any number of grounds—a prospect no one discount 100%, nor should anyone be able to should your system of justice accord with what it is intended to be show cases—he might even under your immigration laws seek asylum, what was his answer? Apart from saying he was not an immigration lawyer, his answer ranged from a virtual guarantee that KSM will be found guilty to the guarantee that if beats his case, he will be detained immediately and will never walk a free man in America, all backed up by Obama’s assertion that he expects to see KSM executed. This response rather actively explodes the principles that make American justice in conception—I step around practice—the brilliant set of ideals to be show cased, that show casing as noted being a strong rationale for the NYC decision. That’s the Kraut’s point: the desire to show case being effectively a show ttial, with the administration to gutless to stand up and face the implications of its own decision, wanting to have it both ways, preening the exemplification of justice but exploding that exemplification by their political words. I missed the analogous public announcements for either Dahmer or McVeigh or for etc. Cite them and deal with them too.

- basman

November 22, 2009 at 12:16pm

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Well, Cookie, there are some people who believe that certain Gitmo detainees should not be tried at all -- that they should be detained indefinitely with no trial. As I understand it, the reasons for that view are: (1) The Gitmo detainees are "enemy combatants," that is, POWs, and therefore can be held without any kind of hearing until the "cessation of hostilities" or, in this case, until the end of the "war on terror"; and (2) some of the detainees are so dangerous that we cannot risk an acquittal and their consequent release. We can argue until the cows come home about the first reason. But Obama himself has in fact invoked the latter rationale in the abstract. I am rather surprised that he has not invoked it in the case of KSM. It is the fact that KSM is being tried at all, regardless of the forum, that I find gratifying from the standpoint of due process. That said, the administration apparently believes there IS a group of Gitmo detainees who can neither be tried nor released. I cannot fathom that any of them would be deemed more dangerous than KSM, so I can only conclude that the AG has determined that there is not a sufficient evidentiary basis to risk trying them. In terms of upholding our due-process values, I think that is a bigger issue than the question of the forum in which KSM will be tried.

- dhurtado

November 22, 2009 at 12:30pm

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Blackton: ...Finally, we don't even know it will even go to trial, KSM might be so broken he might simply plead guilty. Did Krauthammer ever once consider this possibility, not that I could see, instead he wallows in his own cowardice and proclaims it virtue.... 1. The Kraut correctly notes that military commission proceedings had been begun against KSM and he was willing to plead guilty as I understand it.. So as against the certainty of a conviction, the administration has chosen to risk all the problems that come with its NYC decision—and it cannot be denied that there are risks with the NYC decision: that is one starting premise of the Goldsmith/Comey op ed after all: “Reasonable minds can disagree about Attorney General Eric Holder's decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. Necessarily implicit in this assertion is the proposition that the NYC decision comes with risks.—you are having a federal case that engages the risks. So you are wrong to say that the Kraut never considered this possibility and misread him in failing to comprehend his argument that the administration had that “possibility” in the bag, but now the KSM is out of the bag, which is entirely devastating to the point you seek to make here. 2. I have already pointed out to you the administration wanting to have it both ways in professing to want to shine the brilliant light of American justice on the world and then saying things for political cover which undercut that professing. So Blackton who exactly is wallowing in their own cowardice and proclaiming it virtue, to use your apt formulation if correctly applied? And apart from the blast of righteousness coming from form your formulation, where exactly is the Kraut do so? Explain please?

- basman

November 22, 2009 at 12:40pm

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"Lawyer: 9/11 defendants want platform for views" "NEW YORK (AP) - A lawyer for one of five men facing trial for the Sept. 11 attacks says the men plan to plead not guilty and use the trial to express their political views. Attorney Scott Fenstermaker says his client Ali Abd al-Aziz Ali and the others will not deny their role in the 2001 attacks but will tell the jury "why they did it." He says the men will explain "their assessment of American foreign policy." Fenstermaker met with Ali last week at the U.S. prison at Guantanamo Bay. He says the men, including professed 9/11 mastermind Khalid Sheikh Mohammed, have discussed the trial among themselves. The Justice Department announced earlier this month that the men would face a civilian federal trial in New York City. The department did not immediately respond to a call seeking comment Sunday. Copyright 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed." http://www.breitbart.com/article.php?id=D9C4MO781&show_article=1 Thsi promises to be not a Nuremberg type trial, but a Klaus Barbie type trial were the lawyers will attack the West and the victims. The lawyers promise to act like Jacques Vergès did in France. http://en.wikipedia.org/wiki/Jacques_Verg%C3%A8s This should make Hurtado happy.

- jacksondyer

November 22, 2009 at 12:57pm

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…..here is another choice nugget: Really? What happens if KSM (and his co-defendants) "do not get convicted," asked Senate Judiciary Committee member Herb Kohl. "Failure is not an option," replied Holder. Not an option? Doesn't the presumption of innocence, er, presume that prosecutorial failure -- acquittal, hung jury -- is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place. Yes, I love that article where when Jeff Dahmer was captured and the prosecutor guaranteed conviction, that Kraut indignantly wrote that the prosecutor was ignoring the possibility that the victims chopped themselves up and then cooked their own remains and made Dahmer eat the bodies. Freaking no one anywhere believed for the remotest second that Dahmer would not be spending the rest of his life in prison, not his defense lawyers, the only question for him was would it be in a prison for the criminally insane or a regular prison… Blackton this is an unpersuasive argument. Firstly, I’d like to see the article and judge it by exactly what it says rather than accept your paraphrase with all due respect. Secondly, pending seeing the a actual article, even accepting your paraphrase for the sake of argument: so what? So what if the Kraut said something about a different case, and a quite distinguishable case, but never mind, that starins aginst his arguments now? All that that shows is that over the years he said things that strain against each other. That does not tell at all against his argument on the merits now. Thirdly, well, thirdly, see my first post addressed to you on this thread.

- basman

November 22, 2009 at 12:57pm

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Basman, I did not hear Holder say that KSM will never walk a free man in America if acquitted? Was there any follow up regarding what he meant by that? That there are other charges upon which KSM could be indicted if he is acquitted? That he would be deported if acquitted? Or do you really think he meant that KSM will be imprisoned indefinitely regardless of the outcome and without legal basis? As to Obama’s comments, though I think they were unfortunate, I did not take them to mean the outcome of the trial was preordained. I took them in the nature of a boxer, for example, saying of his loudmouthed opponent “he’ll be singing a different tune after I knock him out.” That wouldn’t mean the fight was fixed. Indeed, Obama quickly explained that he did not mean the outcome of the trial was pre-ordained.

- dhurtado

November 22, 2009 at 1:01pm

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I have heard several times now that KSM was prepared to plead guilty in military tribunal but that the Obama admin declined. If true, there has to be more to it. Does any of you have a source for that contention?

- dhurtado

November 22, 2009 at 1:10pm

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I agree that it is disingenuous of Holder not to even consider what would happen in the case an acquittal, however remote he regards that possibility to be. But as I have noted above, that doesn't in itself make the process unfair. The prosecutor is supposed to be partisan.

- dhurtado

November 22, 2009 at 1:34pm

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…One more piece of idiocy: By what possible moral reasoning, then, does KSM, who perpetrates the obvious and egregious war crime, receive the special protections and constitutional niceties of a civilian courtroom, while he who attacked a warship is relegated to a military tribunal? members of the resistance against Nazi Germany were well within their rights to kill German soldiers who occupied their country, and we regard them today as heroes. A same resistance fighter who sneaks into Germany and slaughters German women and children, we would regard as a monster. When we captured Iraqi soldiers we treated them as POW's, even though they themselves did not adhere to the Geneva conventions. If you flat out attack the US military in a war zone, you should be treated as a soldier provided you don't commit a ruse of war, in which case you are a war criminal, subject to military law. KSM and Al Qaeda are not soldiers, they don't deserve to be treated as such… Blackton, calm down: this argument while not decisive and more answerable than some of the others by the Kraut, is hardly “idiocy”. But worse, for you to be leveling the charge of idiocy approaches mild irony considering the flawed counter argument you give, although I do not for one minute consider that counterargument idiocy. Your counter argument sounds to me like it starts to amount to the kind of rationale Holder gave in distinguishing between using military commissions for some of the bad guys and for using a civilian trial for KSM and others. But Goldsmith and Comey—I have a lot of time for Goldsmith; I know nothing about Comey—are politely but entirely dismissive of Holder’s argument and by implication yours. (And remember these two estimable chaps argue for the NYC decision.) “…Mohammed is many things: an enemy combatant in a war against the United States whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of the U.S. criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs…” and: “…The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed, but they help explain the attorney general's related decision last week to consign five men accused of attacking the USS Cole to a military commission. Holder indicated that he was doing so in part because the Cole was a military target outside the United States, but that reason does not hold up. The Pentagon was a military target, many aspects of the Sept. 11 attacks were planned abroad, and the Cole attack is already the subject of a federal indictment in New York… (One of the reasons I have always liked Goldsmith so much, even though I disagree with the weigh he and Comey here weigh the pros and cons, is that he is so refreshingly unideological when he makes his various cases.) As for the precise point which you find idiocy, my own scale of values tells me that it is appropriate for those such as KSM to get the minimum due process allowed by American law in these circumstances and that for what they did they should not have all the benefits of American justice confirmed on them. Just process them and kill them I say—btw, I believe in capital punishment as a general proposition. I see a moral congruence between their acts and the denial to them of a full regalia of rights where that choice lawfully exists, and here it does. You may disagree, but how is what you disagree with idiocy? Finally, an argument against the Kraut here is that the full trial has nothing to do with wanting to accord KSM more rights than he is necessarily entitled to; it has a lot to do with how America benefits from demonstrating its justice in action for the world to see. This is not an argument that denies the moral congruence that the Kraut argues for; it rather understands that congruence but thinks there is a greater good that accrues to America by making a federal case. Again requoting Goldsmith/Comey: …Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs… I disagree, I have said, with their weighing, but none of this has to do with anyone’s idiocy.

- basman

November 22, 2009 at 1:35pm

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What I find hilarious is that all these "show trial" zealots have their panties in a knot when they cheered on the torture regime of George Bush.

- MOLLYSIMON

November 22, 2009 at 1:45pm

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Blackton: This thread has expanded dynamically between the time I made my first point and saw your question about that I liked the Kraut's op ed and now the first time I have had a few moments to write something here. I hope I have dealt with all the criticisms of it you noted here, but I might have missed some. And I hope in answering you I showed why I like and find persuasive his op ed. And I hope I have answered you clearly. Time permitting, I’ll be back for more and I'll be interested to address the Goldsmith/Comey op ed more directly. But in a nutshell, my take is that if as they say reasonable people can criticize the NYC decision, they concede there are arguments that can be reasonably mounted against it. For the life of me I cannot see any persuasive reason to engage the risks informing those arguments that Krauthammer for one forcefully puts especially considering two things: 1. as noted by Goldsmith/Comey the evidence against KSM in particular mitigates against the risks of legal challenge and procedural problems posed by the military commissions, a subject I don't know too much about, and the basis for at least a decent argument for a federal case; 2. but, as alluded to as well by Goldmsith/Comey I think I'm remembering, the Administration has accorded the Commissions its full confidence by standing strongly behind it s decision to prosecute some of the bad guys there.

- basman

November 22, 2009 at 1:50pm

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Noga, if that's the case let's leave the issue of Obama's role in the decision out of it. It seems to be somewhat tangential to the main issue in any case, and the president is not the chief prosecutor. Phew! But you can't seem to leave it alone, can you? After dismissing the relevance of that matter (and I'm with you on that) we're back there again within three paragraphs: "Or does it have more to do with what seems to be Obama's project of restoring US 'shiny' image (something the US has not enjoyed since the day after the end of WWII)?" Who knows? As we don't know what his role was in the decision and the evidence so far (for the third time) speaks more in favor of the independence of the AG's final judgment than anything else, it's all speculative. So, if you don't want a discussion of Obama, don't keep bringing him into the conversation! I won't be, I can assure you. But, more importantly, I can't seem to grasp your underlying definition of a "show trial." For me a show trial is, as I said above somewhere, a scripted procedure in which people indicted on either trumped-up or essentially ideological charges are brought before a political judiciary with no legal or constitutional autonomy or accountability. This is, as you know, not in the remotest sense an accurate description of our federal courts. So (I assume) your definition of a show trial must be something else. If I go by your suggestion above, any trial in which conviction is -- under all normal circumstances -- certain is a show trial. I'm pretty sure that the court-martial that Major Hasan will in time face will find him guilty. Does that make it in your opinion a show trial too? I assume that's not the case. So, translating some that back onto KSM, is there any reason to not proceed with a trial that will (a) lay out the evidence for the complicity of the accused in a major capital crime, identical in fact to the crime for which Sheik Rahman was tried in NYC (except he failed to achieve his desired result) (b) provide a more open legal procedure with traditional safeguards, in contrast to the military commissions that do look somewhat like covert courts (c) enact our commitment not to abandon our system of justice even in the face of terrorist violence, in the city where that violence was perpetrated (d) finally dismantle the aura of "soldiers" that fundamentalist Islamic militants adopt and treat them as violent criminals? The fact that no jury is going to let KSM walk free doesn't detract from the value of laying out the facts and offering the accused the chance to defend his actions within a legal framework. However, it's difficult to think of a convincing defense that justified killing thousands of entirely innocent civilians. And in fact, if they try the ideological re-framing a la Verges and Klaus Barbie, it will fail if we have a good presiding judge who won't allow the court's time to be wasted with theatrics. To put it very simply: if I wear a name badge and travel to Times Square and commit an act of terrorist violence with fatalities, and I'm taken down by the police but survive, and I go to trial for that crime, the fact that my identity is certain, my role as perpetrator in no doubt, and my conviction in all reasonable circumstances a foregone conclusion, does not make my trial a show trial.

- ironyroad

November 22, 2009 at 2:12pm

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Basman, I'm not sure why the subject of the discussion should be Krauthammer rather than the substantive issue, but I cannot resist this observation. You say: "(One of the reasons I have always liked Goldsmith so much, even though I disagree with the weigh he and Comey here weigh the pros and cons, is that he is so refreshingly unideological when he makes his various cases.)" Whatever virtues Kraut's writing may have, I am sure you would not regard his writing as "refreshingly unideological," right? Substantively, I agree that Holder's explanation for trying some detainees in federal court and others in military tribunals rings hollow. I think it is plausible that, as Comey and Goldsmith suggest, Holder believes that, with regard to the detainees to be tried in commissions, there is not sufficient admissible evidence to be reasonably certain of a conviction in federal court. But I wonder about your view that all of the accused should be tried in whatever tribunal would afford them the least procedural protections. Do you completely discount Comey and Goldsmith's point about demonstrating the strength of the American judicial system to the world? And what if US law permitted KSM and his ilk to be executed without a trial at all? That would be giving them all the process that is due them under the law. Would you favor that?

- dhurtado

November 22, 2009 at 2:26pm

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Cookie says, "I am certainly cognizant that someone who reads and appreciates the Spine would not be a big fan of President Obama." Enough already. You think we're a bunch of rabid wing-nuts. We get it. Just stick to the arguments when you come around. And even I think you're stretching it with the "Obamic" bit. There's plenty to argue about in Noga's posts without having to resort to that. By the way, to the Basman, how do we know this will be tied up for years? How do we know we'll be in appeals hell?

- MOLLYSIMON

November 22, 2009 at 2:31pm

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Basman, One thing you are missing is Comey and Goldsmith's comment that the outcomes of the military trials may not hold up to appellate scrutiny because of the questions about the adequacy of the process. Obama's view, along with that of much of the American bar, is that the military commissions thus far have not afforded even minimal constitutional due process. When Obama said 8 months ago that he would employ military commissions, it was with the proviso that the procedural standards would be beefed-up. I don't know whether that beefing up has been implemented. It promises to be a bit of a laboratory. So it is not dispositive, but it is a serious consideration that the convictions in the military commissions may not hold up.

- dhurtado

November 22, 2009 at 2:36pm

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I apologize for how poorly my posts above were written and all their mistakes, syntactical, semantic and grammatical. I hope my meaning was clear nevertheless. My defence: hovering in a crowded, noisy coffee shop over a tiny commuter with an 11" screen. Any way I'm sorry and hope to be back here in a few hours to deal with some of the issues in more substance and with better and more correct prose. One quick sidebar answer to dhurtado, the reason I focused more on the Kraut than the actual decision was I that was asked by Blackton directly about him and then Blackton proceeded to try and make a case against what C.K. wrote. I hoped by answering Blackton I could deal with what I think is a reflexive tendency here sometimes simply to dismiss C.K. because he holds uncongenial views, and at la meme chose deal with some aspects of, and arguments relating to, the decision as well.

- basman

November 22, 2009 at 3:28pm

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MOLLYSIMON "What I find hilarious is that all these "show trial" zealots have their panties in a knot when they cheered on the torture regime of George Bush." Whom do you have in mind?

- jacksondyer

November 22, 2009 at 3:50pm

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Basman, I understand. Though my post addressed you, you were not the only one, or even the first one, to make Krauthammer the subject. Nothing wrong with that, but after awhile, it would be more productive, I think, to focus on the issues rather than put individual commentators on trial (no pun intended).

- dhurtado

November 22, 2009 at 3:55pm

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Molly, Actually, of the 5-10 Spine regulars, I would say that it is about 50/50 in terms of hard right to moderates, so yes, I have overstated the dominance of conservative Spine hegemony. Point taken, apology offered. (But, you do have to admit that among the hardy, there are a few hard core, unreconstructed neo conservatives)

- MrCookie1

November 22, 2009 at 4:26pm

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"But, more importantly, I can't seem to grasp your underlying definition of a "show trial." I thought the wiki definition I quoted earlier was pretty clear: "The term show trial is a pejorative description of a type of highly public trial. The term was first recorded in the 1930s.[1] There is a strong connotation that the judicial authorities have already determined the guilt of the defendant and that the actual trial has as its only goal to present the accusation and the verdict to the public as an impressive example and as a warning. Show trials tend to be retributive rather than correctional justice." I think all of the components present in this definition apply to KSM's forthcoming trial: It is public, the authorities have already pronounced that they know what the verdict will be, the trial is staged as an example of American fairness. Maybe the warning part is absent. would-be Jihadists are not likely to be frightened off by exposure, a guilty verdict by an American court, or even death. The next paragraph in wiki qualifies: "Such trials can exhibit scant regard for the niceties of jurisprudence and even for the letter of the law. Defendants have little real opportunity to justify themselves: they have often signed statements under duress and/or suffered torture prior to appearing in the court-room." If I were a rabid Leftist I would say all components in the qualification also apply. Since I'm not, I can only predict that a guilty verdict will be very difficult to achieve if KSM's signed confessions are thrown out of the court because a fair trial requires indeed a solemn "regard for the niceties of jurisprudence and even for the letter of the law. " And I just don't see how such standards can be maintained conmsidering how KSM's confessions were acquired. Who knows? Maybe Holder has a secret winning card up his sleeve? Something that will both straddle the letter and spirit of the law and the illegality of coerced confessions? And you did not answer my question which I repeated in different forms in this thread: What justice will be served by this particular trial, I'd like to know?

- noga1

November 22, 2009 at 5:54pm

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Noga, I'd rather stick with my definition until I hear a better one -- the wiki offering is imo defective or at least significantly too broad for my taste. But your concluding question is a fair one (I did try to provide an answer, earlier, howerver): the justice that will be served is that which involves our legal and political principles as a nation of laws. A major crime was committed on American soil, much bigger in its scale and consequences than the first WTC attack or Oklahoma City, but not especially different at its core. The authorities have the job of investigating that crime and bringing the perpetrator(s) to justice, to stand trial in the appropriate court. That process took a long time and has become entangled with two wars, but nevertheless the core responsibility remains intact. So, I've tried to respond to the best of my ability. Now, my question to you once again is whether in the case of Major Hasan, whose court-martial under all normal circumstances will end in a guilty verdict on multiple counts, will therefore be a show trial also? Your definition seems to tend in that direction but I sense some doubt your side as to how far you want to push this line of argument.

- ironyroad

November 22, 2009 at 6:21pm

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Noga, Part of the wiki definition of "show trial" is the connotation that the "judicial authorities have already determined the guilt of the defendant[.]" What basis do you have for concluding that the judicial authorities (not the prosecutors) have already determined the guilt of KSM et al.? Or that Holder will have any control over the judiciary or the jury? As to the coerced confessions, Holder has already said that he does not intend to rely on them.

- dhurtado

November 22, 2009 at 6:58pm

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"...whose court-martial under all normal circumstances will end in a guilty verdict on multiple counts, " Isn't Hasan going to face a military court? In which case I don't know how public and showy that trial may be. Also, he could be found not guilty by reason of insanity and confined to a mental institution. Hasan is a citizen of the US. There is also some question about the preventability of his crime pertaining to flaws in the system which may play some role in his trial. I'm not sure in what way the KSM and Hasan are comparable at all. As for the definition of a show trial, well, I thought the wiki definition pretty much included all the necessary elements except the proviso that show trials are mainly the instruments of totalitarian regimes. But we have already talked about Nuremberg and Eichmann being also show trials and falling short of perfectly executed justice system. Of course you sense hesitation in my comments. I am not at all sure about what is going to unfold, certainly not at all as sure as you seem to be that this is the best way to prosecute KSM. I mean, you really seem to work very hard to persuade readers here that this is the best and most reasonable way of dealing with this particular crime. I perceive genuine certainty in your responses to my thoughts. And even an impatience with my lingering scepticism. To me it just does not feel right. To you, it does. I guess we will have to leave it at that.

- noga1

November 22, 2009 at 10:27pm

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This from the Jawa Report: "Further stories clarify that KSM and posse aren't actually entering a plea, rather they sent a letter to the judge claiming they wanted to claim credit for 9/11 and complaining about the entire system, including their lawyers." This needs further fleshing out, but preliminary indications are that the notion that KSM and company were actually prepared to enter guilty pleas may not be accurate.

- dhurtado

November 22, 2009 at 10:48pm

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According to the Hill: "The Department of Justice previously prohibited Khalid Sheikh Mohammed from submitting that guilty plea, when he appeared before a military commission in 2008. "But Holder signaled during a hearing of the Senate Judiciary committee this morning that prosecutors would now be open to such a move in order to progress more quickly to the new trial's sentencing phase." So it was not the Obama/Holder regime that apparently refused the plea. I suspect that the proposed plea had unacceptable conditions attached.

- dhurtado

November 22, 2009 at 11:03pm

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1. Where be my worthy interlocutor Monsieur Blackton? 2. Anyone: strange request, given the whole thread, but to recalibrate and simplify: Give me one good reason for the NYC decision, and let's go from there!

- basman

November 23, 2009 at 1:49pm

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basman, can I refer you to my post of 11/22, 6:21 p.m., para 1? From a layman's perspective.

- ironyroad

November 23, 2009 at 2:41pm

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Noga -- I think I'm more certain of the rightness than I am of the consequences. It could be a mistake, of course. I'd never deny that and I don't have a crystal ball. But the longer-term consequences of sliding into a "new normal" of Guantanamo, military tribunals, and all that go along with them are real too, even if less visible.

- ironyroad

November 23, 2009 at 2:45pm

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Basman, Do you not think any of the reasons articulated by Comey and Goldsmith are worthy of consideration? I remain ambivalent on the matter, but here are couple of reasons that I think are "good," if not dispositive: First, as discussed by Comey and Goldsmith, the military commissions are currently of questionable constitutionality, and thus a decision by a military commission is more susceptible to legal challenge (as well as to lack of credibility). Second, the 6th Amendment of the US Constitution requires that a criminal defendant be tried in the district in which the crime was committed. Now, there certainly can be debate about whether the 6th Amendment is applicable to KSM and the other Gitmo detainees. But the Supreme Court has held that Gitmo is "American soil" for constitutional purposes. Another counterargument would be that KSM and the other Gitmo detainees should be considered enemy combatants rather than criminal defendants, and therefore that they can be held indefinitely with no trial or hearing at all. But the Admin is clearly proceeding on the premise that they are criminal defendants.

- dhurtado

November 23, 2009 at 3:49pm

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dhurtado, irony: I'd let to get into this with you both. I crave your indulgence for a bit as I am fiendishly busy. It's perverse: I am trying to make a transition to a life of quiet contemplation--leaving the stress of a law practice behind me, and getting to think hard about the poetry of Suckling and Lovelace--but "Just when I thought I was out...they pull me back in." So if you can bear with me as I wait for some legal dust and personal dust to settle, I'd be obliged.

- basman

November 23, 2009 at 11:44pm

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basman -- no problem, me too, but in my case it's end-of-semester madness that's coming down the road like a menacing dust storm in a 1930s Okie documentary.

- ironyroad

November 24, 2009 at 12:22am

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Same here

- dhurtado

November 24, 2009 at 9:47am

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Irony, I take it that your argument for the NYC decision in the post you referred me to is, in your words. that “the justice that will be served is that which involves our legal and political principles as a nation of laws.” And the premise your argument stands on, I am inferring, is that 9/11 was a crime as opposed to a war crime, KSM a criminal criminal,, so to speak, as opposed to an enemy combatant and hence a war criminal. If I have you right on that, there are a host of problems, in my view, with characterizing 9/11 as a crime rather than a war crime. But I’ll bracket my concerns by suggesting we agree for the immediate moment that either characterization is open to us and we can go either way. That then means we can legally choose between either forum: a civilian criminal court or a military commission. With that predicate we can drill down some into the ground of your argument. The first soiled sample my drilling down reveals is some question begging in your formulation. Since the commissions are justice dispensing institutions blessed and sanctioned by the majesty of American law, as evidenced by the Administration’s decision to prosecute some of the bad guys by way of a Commission, why isn’t justice just as fulfilled by prosecuting KSM in a like manner? In a word, American legal and political principles are served equally well by either forum, unless you mean to impugn the Commissions as a general proposition. If that general impugning is your position then you’d need to be critical of the Administration’s intention to use the Commissions. And if short of that impugning, you somehow feel that justice will be better served by federal cases, and then it would follow that you ought to be critical, on that same basis, of the Administration’s intention to use the Commissions. I also find the formulation of your reason somewhat abstract. If we can agree that either forum provides justice enough, then we are into the kinds of considerations Goldsmith and Comey describe: Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs…” Those trade-offs comprise a different order of argument than the one you offered, in my view. If you disagree or don’t think I have done your reason justice—excuse the mild pun—explain to me why. If you want to get into the trade-offs themselves, just say the word.

- basman

November 25, 2009 at 12:52am

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dhurtado I got back to Irony first. Give me a bit of time and I'll try to answer your second last post too.

- basman

November 25, 2009 at 12:57am

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Basman, I would not presume to speak for Irony, but with regard to this: "Since the commissions are justice dispensing institutions blessed and sanctioned by the majesty of American law, . . ." Actually, there is some doubt about whether the military commissions, at least in practice, are constitutionally adequate. (The commissions are a different institution than courts martial.) Indeed, the anomaly for me here is that, once having decided to try some of the Gitmo defendants in federal court, the AG has not determined to try all of them in federal court. It could be that there are questions about a federal court's jurisdiction over an act perpetrated against a military target outside of the United States. Or, to be more cynical, it could be that the government does not have as strong a case against those being tried in the commissions, and so it prefers the looser procedural standards of the commissions.

- dhurtado

November 25, 2009 at 11:02am

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Basman, I'll have to think about what you wrote above -- as well as do some actual work today for which I earn my salary. I'll get back later on this afternoon, hopefully.

- ironyroad

November 25, 2009 at 11:19am

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basman -- this is somewhat scattershot, but here goes. You are right in identifying a fudge or contradiction in my position regarding the use of military commissions. But I see something similar in your introductory comments on the 9/11 attacks. Two questions occur to me: a) If the 1993 attack on the WTC was a criminal crime -- viz the Rahman trial -- why would the 2001 attack be any different? b) even if some differences may have legal significance, can Al Qaeda declare war? Surely a war has to be in existence for a war crime to exist, no? If you and I and dhurt get together in Wichita, KS, and form a group called The Heartland and decide that we want to wage war on France because of the dumb offensive French way they drink wine and eat cheese, and we manage to blow up the Eiffel Tower and kill a lot of people, does that make us "war" criminals? Are we allowed to declare war, as if we were a country? So if you could tell me how 9/11 is different to the first attack, and whether AQ can declare war against us, that would clarify some things. Secondly, it's not clear to me that any of the other potential indictments that would go before the MCs are as directly related to 9/11 as KSM's. If, as you say, the presumption at the moment is that both forums can be locations of appropriate findings and verdicts, then one could argue that there is a completely legitimate political justification for transferring any or all cases to federal court, where the process is more visible and less likely to carry the burden of isolation and secrecy. Guantanamo isn't a place where justice can be seen to be done. I agree that I'm caught in a bind regarding the administration's proposed continuation of MCs, but I retreat to the place that says, it's not a zero sum game. Much as I'd prefer Gitmo to be bulldozed, I accept the pragmatic approach that says some cases are better handled by the commissions, others (few) in federal court.

- ironyroad

November 25, 2009 at 2:27pm

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"If you and I and dhurt get together in Wichita, KS, and form a group called The Heartland and decide that we want to wage war on France because of the dumb offensive French way they drink wine and eat cheese, and we manage to blow up the Eiffel Tower and kill a lot of people, does that make us "war" criminals? Are we allowed to declare war, as if we were a country?" This is such an inspired analogy. Every detail in IR's imaginary tiny militia has its perfect corollary in AQ's contingent and claims. I understand that IR wants to make things simple, but as Einstein once rightly said: "Everything should be made as simple as possible, but not simpler." If this is how IronyRoad perceives of Al-Qaeda's mission, record and practices, then I am no longer baffled by some of his positions. I mean, of course in a world where Al-Qaeda is seen as no more threatening than a bunch of weird intellectuals who have taken a violent dislike to French wine and cheese, it makes sense to continue to disregard these juvenile shenanigans, somewhat harmful to some people's health but otherwise easily containable and best ignored.

- noga1

November 25, 2009 at 3:52pm

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I'll let Basman weigh in before saying too much more. But a couple of points: First, regarding whether the detainees to be tried in MCs have a relation to 9/11, they do not. One of Holder's rationales for the distinction, whether one buys it or not, is that the ones to be tried in NYC targeted NYC, whereas the detainees to be tried MCs are alleged to have attacked military targets, i.e., the USS Cole. Second, if the detainees are to be treated as criminal defendants, rather than enemy combatants, unlawful combatants, war criminals or something else, then the 6th Amendment of the Constitution REQUIRES that they be tried in the location where the crime was committed. Under that analysis, Holder had no choice but to try KSM and the other alleged 9/11 plotters in NYC. The fundamental question of whether KSM and the others should be deemed criminal defendants as opposed to enemy combatants could be, and has been, the subject of vigorous debate. But I think Irony asks some good questions in that regard.

- dhurtado

November 25, 2009 at 3:53pm

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Your post in response to Irony is completely unfair Noga. I take his hypothetical to be a thought experiment to try to clarify how we would distinguish between acts of war and other acts of mass violence that we would not regard as acts of war. Irony clearly is not saying that the level and scope of the threat from his imagined trio is the same as that posed by Al Qaeda. Nor is he suggesting that Al Qaeda is easily containable or that it should be ignored. Irony poses a legitimate and important question.

- dhurtado

November 25, 2009 at 4:03pm

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If you read my comment before responding, Noga, you'd see my analogy wasn't between AQ and a group of weird intellectuals who dislike the French, but between AQ and a bunch of weird intellectuals who dislike the French and who on that basis commit a major act of violence in Paris with multiple fatalities. I think that is markedly different from your characterization. But all analogies are to some extent incomplete, and in no way was I making a comment about the real-world containability of Al Qaeda (which is not primarily a legal or constitutional question, but a strategic one that touches on law enforcement, diplomacy, and military action). Basman re-opened the question of the indictment and the NYC decision, which is where we're at.

- ironyroad

November 25, 2009 at 4:35pm

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I read your comment, Ironyroad, and was fully cognizant of your intent. Still I was baffled by the simplification you offered. It is as if the size, intentions and record of the global jihad organization is a negligible factor in the decision where and how to prosecute KSM. As if the problem posed by exactly the size of the aspirations of AQ is nothing but a quibble, a nice point of law, as Rumpole would say, in the roster of considerations to be taken into account. There is something very manageable and neat about your "thought experiment". It's as if you decide which factors you want to consider and put aside all the other factors which somehow interfere with the smoothness of your solution. Perhaps you might want to consider that "the real-world containability of Al Qaeda" is directly pertinent to the prosecution of KSM.

- noga1

November 25, 2009 at 4:58pm

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Noga, The question on the table is whether KSM should be deemed a criminal defendant subject to the US Constitution, or a "war criminal/unlawful combatant" such that he arguably would be subject to some other legal regime. If the former, the Constitution requires that he be tried in the Southern District of New York, plain and simple. If the latter, than the choice of forum becomes murky. To determine that KSM is a war criminal or enemy combatant under the Geneva Convention would require that his conduct occurred in the context of a "war" within the meaning of the Convention. So, if the proposition is that the 9/11 attack was an act of war, then what is it that makes it an act of war, as opposed to merely criminal mass murder/destruction, ala the Oklahoma bombing. Is it because the destruction was on a more massive scale? Is it because it was perpetrated by foreigners? Is it because Al Qaeda, unlike an individual or small group of individuals, is a large organization, so that it is sufficiently like a nation that its violent actions can be deemed an act of war within the meaning of the Convention? Those are valid questions.

- dhurtado

November 25, 2009 at 6:33pm

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Irony, firstly, no need for such formality. Call me Basman. There have been quite a few posts flying around here lately but I’m respectfully to others going to try and only deal with yours of 11, 25, 2:27. I’m interested to know what the “fudge” is in my “introductory remarks” or which specific remarks you mean. If you ask wrong question, you will get the wrong answer. f your question is whether the 9/11 attack was an act of war, you will get into, I think, abstruse and technical international law questions—on which my competence is severely limited—which are not to the point here, I don’t think. They are not to the point because the conventional framework of considerations of the NYC decision assumes that act of war. You can make a broader argument against the NYC decision on law enforcement model as opposed to a war model, and that in some other context may be an argument worth having. But “the issue on the table” to use someone else’s phrase is not whether 9/11 was an act of war as such. The issue on the table is whether the NYC decision is a good one assuming 9/11 was an act of war and prosecution could go either before a military commission or a civilian criminal court. That is to say, the issue on the table for practical purposes is the evaluation of the decision given the decision makers’ very own criteria for judgment. On this basis, a discussion of whether 9/11 was an act of war is beside those criteria and the comparison of 9/11 to the WTC is pertinent to those criteria on the question of precedent for a federal case, on the question of the logistics of a federal case and the court’s ability to deal with these kinds of issues and on like questions. But on the same basis the comparison of WTC to 9/11 is impertinent to the question of whether 9/11 was an act of war insofar as the administration reasoned its way to a decision on assuming 9/11 war as a war act. But briefly to go down the wrong road: first credentialist support for 9/11 as an act of war I appeal to the very article I cited before, Goldsmith and Comey’s, which in this thread has been put as the counter piece to the Hammer’s. They say, both American lawyers, Goldmsith a Harvard law professor—I said it was credentialist support—without worrying too much about it, as follows: …Mohammed is many things: an enemy combatant in a war against the U.S. whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of our criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs… That’s pretty well good enough for me on this score; and it’s from this kind of open- option analysis that I think the discussion should proceed. But to go further down the wrong road we have two perspectives to consider: international law and internal American law. I’ll start with the former. The UN Charter prohibits the use of force. Two exceptions are: 1) the inherent right of self-defense as provided for under Article 51; and, 2) collective action authorized by the UN Security Council under Chapter VII. The inherent right of self-defense may require an "armed attack." Was 9/11 such? Probably, I’d say, even if not carried out by a nation state as such. Article 51 also limits war action to when "the Security Council has taken measures necessary to maintain international peace and security." Has it? It’s arguable. It passed a resolution which condemned the attacks and called for the doers and their harborers be brought to justice. It called upon all UN members to cooperate in the suppression of terror. Finally, the S.C. "expresses its readiness to take all necessary steps to respond to the terrorist acts of 11, September." The US actions in Afghanistan have met with little legal objection from other governments. NATO invoked Article 5 of its Charter declaring the attack on the US to be an attack on all NATO members. This all reflected strong political support for the action in law and policy. A slight digression going to the impertinence of your question is this: international law to date can’t adequately address asymmetric warfare. Did Afghanistan, which safely harbored al Qaeda, give up its right to claim a violation by America’s actions? International law has to catch up with these kinds of issues. From an American internal law perspective, well, here it is: ...Introduction Begun and held at the City of Washington on Wednesday, the third day of January, two thousand and one, Joint Resolution To authorize the use of United a States Armed Forces against those responsible for the recent attacks launched against the United States. Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, Section 1 - Short Title This joint resolution may be cited as the 'Authorization for Use of Military Force'. [Section 2 - Authorization For Use of United States Armed Forces (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (b) War Powers Resolution Requirements- (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes (sic) any requirement of the War Powers Resolution. Getting back on the right road, I see someday light in your post in your very last sentence: “… I accept the pragmatic approach that says some cases are better handled by the commissions, others (few) in federal court.” What are those to your mind and let’s argue about them if you want to?

- basman

November 26, 2009 at 12:02pm

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basman -- I'll have to think about all this, but before I do any thinking (along with today's eating), please lift bafflement in re following! "Irony, firstly, no need for such formality. Call me Basman" Huh? and ????????????????????????

- ironyroad

November 26, 2009 at 1:03pm

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Call me Basman? A joke! As to your ??????????????????? I say: ????????????????????????? IE what is it you don't understand.? I thought I was very clear.

- basman

November 26, 2009 at 1:48pm

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basman, I was pretty sure it was a joke, as the linguistic markers pointed that way, but what I don't understand is what the joke is turning on. IE it was obviously something to do with formality vs. informality, that was perfectly clear to you, but as I went back over my last couple of posts I could see nothing untoward. I mean, you don't have to explain, but I just wanted to say I was baffled. I feel like a six-year-old who doesn't know why the adults are laughing at something. Hey, maybe I am a six-year-old. That would explain a lot.

- ironyroad

November 26, 2009 at 2:31pm

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irony my bad: I think. I first took your ???????????????????? as going to the substance of my post, not as your way of emphasizing your bafflement with my (poor thing that it was) joke. You have I assure you said nothing untoward. I was just being a bit giddy. Sorry for the confusion. Okay?

- basman

November 26, 2009 at 2:42pm

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Oh, and what the joke turned on: you always call me Basman. So I said "drop the formality, call me Basman." What can I tell you?

- basman

November 26, 2009 at 3:16pm

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basman, giddy I know. As I almost derailed our actual discussion, I strain mightily [creak!] to get it back on track. So here goes: You give a very convincing analysis of the impertinence (love that word!) of the previous WTC case to the legal standing of the KSM procedures -- I hadn't quite looked at it that way before. But let me see if I can sum up what you're arguing above: 1. The capture, interrogation, and indictment of KSM has taken and continues to take place against the legal background defined by the Congress's Joint Authorization to Use U.S. Armed Forces; therefore the question of whether the indictments for the 9/11 attacks can also be brought under U.S. criminal law is not an issue that is currently "on the table"; they are, in fact, but the weight of events over the last few years has tended to move things toward military legal jurisdiction. 2. The relevance of the previous WTC trials bears only upon the operation of the federal court in a similar case; those trials provide no rule as to what jurisdiction, federal court or military commission, is appropriate for any KSM or related proceedings. 3. The question of military vs regular criminal law in relation to assymetric warfare is still largely open, internationally and in the U.S.; no substantial guidelines have been established as yet. Is that a fair summary? If so, then I think I'd have to say that I don't know if you're arguing therefore that the Joint Authorization supersedes the power of the federal attorneys to bring indictments to court and try the accused -- e.g. that the feds have no claim, as it were, on anyone's ass who has already been through the military commission system (or, at least, preparatory to such a hearing). It does seem as if the Justice Dept and the AG think differently, so what I'm not sure of -- to put it another way -- is whether your position is that the feds are now somehow misreading or undermining the clear legal implication of the Joint Authorization. You can see I'm floundering a bit -- not being a lawyer, just an opinionated s.o.b. -- but you see the question I'm getting at. Btw I think the "fudge" I saw wasn't a fudge at all from your side -- I just meant that I thought you were assuming the war crime designation of 9/11 while I was seeing that as exactly what wasn't fixed (being biased in favor of the criminal act designation, myself).

- ironyroad

November 26, 2009 at 3:50pm

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Ah! That's what I thought the joke was, but it was confusing and a even little dismaying because lots of folks call you basman, not just me.

- ironyroad

November 26, 2009 at 3:58pm

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...Ah! That's what I thought the joke was, but it was confusing and a even little dismaying because lots of folks call you basman, not just me... I'm working on "Your Majesty": it's not going well at all. On the substance, I'll get back to you fairly soon when I am better able to take more time to give you a considered reply. Enjoy your turkey: for me it's some good Italian food with a nice Amarone on a night out with the boys.

- basman

November 26, 2009 at 4:25pm

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"I'm working on 'Your Majesty': it's not going well at all." Don't sweat it! I'm totally ok with "irony."

- ironyroad

November 26, 2009 at 5:04pm

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Naah man, you are "Your Majesty" already. Very much "Your Highness". Me, I'm a mere vassal in the kingdom of the bogosphere, very much "Your Lowness". Now, let's have Noga, say, unpeel the onion layers of ironic self deprecation fused with ironic self aggrandisment in all of this here and a few before and reduce it all to nothing at all.

- basman

November 26, 2009 at 5:21pm

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Such abundance of mutual respect and admiration could only remind me of this scene, read so long ago I'm even surprised I recall it, in which ingratiations and protestations abound while sharpened daggers are discreetly concealed under silk and velvet: "Enter HENRY BOLINGBROKE and THOMAS MOWBRAY HENRY BOLINGBROKE Many years of happy days befal My gracious sovereign, my most loving liege! THOMAS MOWBRAY Each day still better other's happiness; Until the heavens, envying earth's good hap, Add an immortal title to your crown! KING RICHARD II We thank you both: yet one but flatters us, As well appeareth by the cause you come; Namely to appeal each other of high treason. Cousin of Hereford, what dost thou object Against the Duke of Norfolk, Thomas Mowbray? HENRY BOLINGBROKE First, heaven be the record to my speech! In the devotion of a subject's love, Tendering the precious safety of my prince, And free from other misbegotten hate, Come I appellant to this princely presence" Please, before Master Ironie rushes to explicate, I know it is all about nothing.

- noga1

November 26, 2009 at 5:37pm

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...concealed under silk and velvet... In my case, burlap and hairshirt.

- basman

November 26, 2009 at 5:45pm

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More "slithers to explicate," methinks.

- ironyroad

November 26, 2009 at 5:46pm

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Boys will be boys, Oy.

- noga1

November 26, 2009 at 6:07pm

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Basman, With respect, I think you are conflating the issue of Congress' authorization under the War Powers Act of the use of the US military to go after the terrorists in Afghanistan and elsewhere, on the one hand, and the issue of whether the conflict is a "war" within the meaning of the Geneva Convention, on the other hand. The Joint Resolution does not speak to and presumably could not overrule how prisoners of war are to be treated under the Geneva Convention. So the question is not so much whether the 9/11 attacks were "acts of war," but whether this new type of conflict -- in which the enemy is not a sovereign nation with a regular army with uniforms and conventional weapons, etc. -- is a "war" within the meaning of the Geneva Convention such that the Convention governs how suspected terrorists who are taken captive are to be prosecuted. The answer to that question is directly pertinent to what options are open to the US government with regard to the Gitmo detainees. The US government has apparently made the determination that the Gitmo detainees are properly to be treated as criminal defendants rather than as prisoners of war. If that premise is accepted, then Holder has no choice but to bring KSM and the other alleged 9/11 plotters to NYC for trial. He is free to bring the alleged attackers of the USS Cole to trial in a military commission because that act was not committed on US soil. It's pretty much that simple, unless you want to argue that KSM and company are, as a matter of international law, properly to be treated as enemy combatants rather than criminal defendants. If so, then the question of whether we are at "war" in the conventional sense is directly pertinent. Setting that question aside, and assuming that Holder has the option (not the requirement) of treating KSM as an enemy combatant and thus also has the option to try KSM in a military commission, the policy considerations for nevertheless trying KSM in NYC have been articulated by Comey and Goldsmith and posters on this thread. They include showcasing to the world the integrity of the American system of justice and ensuring that the convictions are impervious to legitimate criticism and will be upheld on judicial review. On the other side of the ledger, of course, are the security concerns and the provision of a stage for the defendants to spew their propaganda. As Comey and Goldsmith observe, reasonable people can disagree on how those considerations should be weighed.

- dhurtado

November 27, 2009 at 1:11am

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I've been posting bits on another thread or two aroundhere, but only fleetingly. I mean to attend to this over the weekend when I can take more time.

- basman

November 27, 2009 at 2:51pm

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Irony in your summary of my argument you, have elaborated on it. As to your summary paragraph 1, it’s fine up to the last sentence or phrase starting “they are, in fact....” I am neither making nor disputing any such claim. How we characterize the weight of events over the last few years could be, but is not now, but is not right now, as I am thinking about it, crucial to my argument. I don’t necessarily disagree with your second paragraph but I would frame it differently and give it a different emphasis. I took your point to be how do we distinguish between the WTC and 9/11 such that the precedent of the former is not determinative of where the trial of the 9/11 bad guys should be held, which raises the prior question why—as you asked— is 9/11 an act of war when WTC was not, if it was not, and for other reasons too. You already have my answer to that in my last post so I won’t repeat it in commenting on the accuracy of your paraphrase. So the WTC example does not bear only, and powerfully in fact, on the procedural and logistical considerations in deciding to make a federal case against KSM; it also bears jurisdictionally on that decision and I would not say—I feel like in my attempt to be precise I’m writing a legal brief, that the WTC trial and legal experience “provide no rule as to what jurisdiction, federal court or military commission, is appropriate for any KSM or related proceedings”, whatever the scope of that exactly encompasses, I would say as I tried to say in answering your very original set of questions, it is not determinative of jurisdiction because the deciders proceeded on the assumption, as noted by Goldsmith and Comey, the KSM could be treated as a criminal in breach of federal law and as a war criminal. As to your third paragraph, it is problematic for me. Firstly, as with the last phrase, sentence of your first paragraph it‘s‘*obiter*, which is to say not crucial to the essence of my argument. In commenting briefly on the 9/11 as an act of war, I qualified my comments by saying that concerning my answer to your post, I was going down the wrong road as a matter of interest and because you raised the question. That essence again is the impertinence of asserting the criminal law/ war crime distinction as a basis for analyzing the NYC decision in our context, because the either of both was an operating presupposition for the decision. But as noted it was interesting to me to try to sketch briefly why I thought 9/11 was a war crime, NYC notwithstanding, and how, as you note, the law of war needs to catch up with asymmetric war. It’s me not you I am sure, but I am not saying anything about the Authorization ousting federal criminal jurisdiction. I’m not well versed in American law, but I’d think in the matter of KSM and his 4 or 5 other defendants about to be tried, the military tribunal jurisdiction and the federal court jurisdiction were/are complementary and it, as I have been trying to say, and the Administration could have gone either way. AT the risk of irritating let you quote the important part of Goldmsith and Comey here again: …Mohammed is many things: an enemy combatant in a war against the U.S. whom the government can detain without trial until the conflict ends; a war criminal subject to trial by military commission under the laws of war; and someone answerable in federal court for violations of our criminal code. Which system he is placed in for purposes of incapacitation and justice involves complex legal and political trade-offs… It’s taking quite a while to get to the issue, though I am happy and enjoy taking the time, but Irony, as I am arguing, the issue about the NYC decision is precisely the “complex legal and political trade-offs”. And that’s what I’d propose be discussed assuming you are not insufferably bored by all this at this point. Now within the *context of that discussion*, it’s a good question to argue about, given the availability of the criminal jurisdiction and the military tribunal jurisdiction, why plump for one and not the other for KSM et al. (But just to be clear, the issue there is *not* why the Administration *had of necessity*, to chose one over the other,* but why choose one over the other when either of both was available--a factor structured exercise of discretion rather than a binary X or Y.) If I’m beating a dead horse forgive me. I hope I’m not: 1. As said, beating a dead horse, 2. As I’m prone to do, missing something important in what you are saying; or 3. As I am prone to, being convoluted or unclear.

- basman

November 29, 2009 at 2:05pm

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"Now within the *context of that discussion*, it’s a good question to argue about, given the availability of the criminal jurisdiction and the military tribunal jurisdiction, why plump for one and not the other for KSM et al. (But just to be clear, the issue there is *not* why the Administration *had of necessity*, to chose one over the other,* but why choose one over the other when either o[r] both was available--a factor structured exercise of discretion rather than a binary X or Y.)" I take your argument, basman, but my I think I'm still somewhat in the dark as to whether (a) we are now at some distance from your original comment that it was a "terrible, terrible" decision on the part of the administration to have structured their current decision around certain factors -- one of which is, presumably, the greater perceived legitimacy of a trial in federal court, as opposed to a military commission. or (b) we are still arguing on your original setting-out of two alternatives on a continuum (ok, with some nuances in between) and then tilting this fairly rational scenario by marking out one alternative with pretty apocalyptic language. I think what I'm asking is whether reasonable people (hah!) can disagree over which option the AG has selected, or whether your reading of it leads essentially to a situation where you formally agree that there are two valid legal/jurisdictional paths to go down but then describe one of them as so bad that only a nutcase/fool would go down it.

- ironyroad

November 29, 2009 at 7:24pm

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I am beginning to feel neglected Basman. :-) Irony raises some fair questions in his 6:24 pm post. He, Comey and Goldsmith, and I (and possibly others on these threads) have articulated reasons for trying KSM and company in NYC rather than in military tribunals, including the "greater perceived legitimacy of a trial in federal court" and the greater imperviousness of a federal trial conviction to appellate review. None of those commenters have said those reasons are dispositive, but have concluded that one could reasonably take the position that those considerations outweigh considerations of security and grandstanding by the defendants. So far, however, you have not even acknowledged those considerations, much less presented an argument that they are outweighed by considerations of security and grandstanding. I also note that Comey and Goldsmith essentially punted on the issue of whether KSM and company may be treated as criminal defendants under US criminal law, as enemy combatants or as war criminals. They assumed without analysis that the USAG has the discretion to treat them as falling within any one of those categories, and then analyzed the competing arguments for trying them in federal court or in MCs. In fact, it is a matter of vigorous debate whether KSM and company may, under international law, be treated as enemy combatants or as war criminals as opposed to violators of US criminal law. Holder has at least implicitly concluded that KSM and company must be treated as criminal defendants, and therefore that they must by tried in NYC. Is Holder right? Far from being impertinent, an affirmative answer to that question would moot the policy debate.

- dhurtado

November 29, 2009 at 9:59pm

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1. Sorry dhurtado for not including you in my comments today or adverting to your posts. It was a function of which computer I used. I have a 2 pounder with an 11" screen and when I'm out and about I take it with me. Today between things I sat in a Borders type bookstore/coffee shop place and sent my today's post. With only it, small screen and no printer, I'm limited in how much I am capable of dealing with at one time (and am incredibly prone to all manner of writing errors.) 2. irony I think with your last post we have at long last cleared away the bramble and are now at the issue--the wisdom or unwisdom of the NYC decision given the availability of both forums. It remains my view, within the terms we have now laid down--the Goldsmithian "tradeoffs" legal and political-- that it's an unjustifiable decision," terrible terrible", if you like. That's the position I want to defend. 3. To both of you: since Goldsmith and Comey (two very smart guys, and I have a lot of respect for Goldsmith who by the way served in the W's O. of L. C. and wrote a smart and balanced book both critical and praising of W’s "war on terror" from a domestic legal perspective: The Terror Presidency: Law and Judgment Inside the Bush Administration) have made the case as against Krauthammer, though they weren't answering him as such, I immodestly propose to set myself no mean task that will bring in some of the points Dhurtado raises. I propose to write something, not too long, that tries to take issue with their argument. Again, I need your indulgence because I am a week away from a massive hearing, plus with other immediate things on the go. But I will get something considered off when I can and let you know by cyber smoke signal when I have.

- basman

November 30, 2009 at 12:15am

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I am surprised you have time to post anything at all Basman, with a major hearing approaching. I will await your "cyber smoke signal."

- dhurtado

November 30, 2009 at 2:00pm

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...I am surprised you have time to post anything at all Basman, with a major hearing approaching. I will await your "cyber smoke signal... Don't ask; don't even f...... ask!

- basman

November 30, 2009 at 11:48pm

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