But there are still several problems with this decision that bother me, and make me wonder why the Obama administration made this decision.
First, in response to stated worries by the senators (Holder was testifying about the decision before the Senate Judiciary Committee) about the chance that KSM would not be found guilty, Holder responded “Failure is not an option.” Now, it's likely that Holder was speaking rhetorically here and that he didn't actually mean that it is impossible for KSM to get off on the charges. But the remark certainly implies that the civilian trial has been predetermined, or at least will be little more than a show trial. If the decision to shift trial venues was primarily intended to erase the bad taste remaining from the Bush administration's efforts to evade the law and the taint of Guantanamo, anything that calls into question the fairness of the civil trial KSM is about to undergo undermines that intent. When the Attorney General says failure is not an option, it certainly raises questions as to whether KSM can, in fact, receive a fair trial. Is it possible to find American citizens, and more specifically New Yorkers, who won't have prejudged the case and KSM's guilt? Furthermore, the New York Times reports that "other Justice Department officials have said that even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a 'combatant' under the laws of war." How will that look? How will the international community respond if KSM is acquitted under our domestic laws and then kept indefinitely in military custody? Won't that simply reinforce the perception of injustice?
Second, in an excellent piece over at Slate, David Feige warns that, far from upholding the American principal of law and order, this trial may very well undermine our legal system by "generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients." According to Feige, because "No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial," KSM's defense lawyers will be forced to rely on two strategies: 1) An argument that persuasive evidence of torture should result in the suppression of a great deal of evidence; and 2) to use the discovery process to uncover facts that embarrass or discomfit the government. Feige points out how this strategy forced the US government to back away from its desired three life sentences for "American Taliban" John Walker Lindh and settle for 20 years in prison in exchange for Lindh agreeing to a gag order and dropping his claims of torture and mistreatment. This time, according to Feige:
They'll allege a violation of KSM's right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They'll seek suppression of KSM's statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree. They will demand the names of operatives and interrogators, using KSM's right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret—the identities of confidential informants, the locations of secret safe houses, the names of other inmates and detainees who provided information about him, and a thousand other clever things that should make the government squirm. The defense will attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods. They'll move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.By prosecuting KSM in civilian courts, the rule of law itself may very well be damaged. Take the question of torture. Even if a court is willing to determine that waterboarding is not torture but a legitimate coercive interrogation technique, the government's own memoranda make it clear that KSM was waterboarded in violation of the rules established to ensure that the use of waterboarding would not constitute torture. According to the legal opinion written by Steven Bradbury of the Office of Legal Counsel in the Department of Justice (p.15):
The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute.
But, on p. 37, we are informed that the waterboard was used "183 times during March 2003 in the interrogation of KSM (Khalid Sheikh Mohammed)." As I wrote on April 20, if you "do the math on the instructions from p. 15, the rules limit the use of the waterboard to no more than 60 times per month (five days per month, two sessions per day, six applications of water during each session; 5x2x6=60). And yet, KSM was waterboarded 183 times." There is seemingly no question that the government broke its own rules on the waterboard with KSM and that breaking those rules almost certainly means that KSM was tortured, even if the use of the waterboard, in and of itself, does not equate to torture. What will a trial judge and a jury do with this information? What happens when KSM's defense attorneys claim that everything KSM admitted was tainted by the abusive and wildly excessive torture he suffered? As Feige points out, the evidence could be dismissed, raising the likelihood that KSM could be acquitted. Or, the claim will be ignored or, if the government has enough evidence to convict KSM even if all torture-tainted evidence is throw out, rendered irrelevant. Either way, this has the potential to create extremely dangerous precedents and procedures within the US legal system.
The waterboard may be authorized for, at most, one 30 day period, during which the technique can actually applied on no more than five days...Further, there can be no more than two sessions in any 24-hour period. Each session--the time during which the detainee is strapped to the waterboard--lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period.
To me, this whole thing seems like a no-win situation. If KSM is convicted, it won't put to rest any doubts about the fairness of the American legal system and its application in the war on terror. And if by some unforeseeable development he's acquitted, it's hard to imagine a bigger transgression against justice.