Posted by: rotenochsen | November 16, 2009

The Real Reason For The Trial in New York of Khalid Shaikh Mohammad

Monday, November 16, 2009

Given the availability of military commissions to try KSM and his co-terrorists., I ask why Obama has chosen to bring them to trial in federal court in New York. One searches in vain in Saturday’s Washington Post story on the decision for an explanation. And do not forget that the orders to the attorney General come directly from the White House in such a controversial matter!

No consideration of justice, history or tradition weighs in favor of treating KSM . as a criminal defendant. Against the predictable negative risks and negative consequences, advocates of Obama’s decision offer stupid considerations of public relations. Is this a trail or a public relations skit to make foreign governments like us??

Judging Obama’s treatment of KSM . by its predictable effects rather than its apparent intentions, one arrives at a harsh conclusion. If Obama sought to subvert fundamental American institutions or to confuse the understanding of the American people( upon both of which America’s future depends) he would proceed as announced.

It has been suggested that the Obama administration views KSM  as its” allies” in its war against the Bush administration. Which seems to me to an ongoing vendetta!
Obama expects them to make their treatment by the Bush administration, real and imagined, the centerpiece of their defense, with the possible result that Bush, Cheney, and others may be indicted as war criminals by European countries or international courts, thereby satisfying the far left of the Democratic Party, which Obama represents.Think about it! The ACLU and most Leftists believe this lie already!

 Khalid Sheikh Mohammed and his terrorist co-conspirators ( the perpetrators of 9/11) are now afforded all the protections to which American law entitles them. Now Obama, to whom the decision must be attributable, regardless of the pretense that the buck stops with Eric Holder.Has chosen to bring KSM and his terrorist friends from “Gitmo”. to federal court in New York for a civilian trial as though he and his colleagues were common criminals. Why? Doing so carries with it certain necessary consequences and obvious risks that have already been the subject of informed comment:
Here are the risks and fallacies of trying this trash in New York!

1. Obama confuses the commission of crimes with acts of war. The 9/11 attacks on the World Trade Center and the Pentagon constituted acts of war.

2. Obama cloaks KSM et al. with all the constitutional protections to which American citizens are entitled under the United States Constitution.

3. Obama affords KSM et al. a public forum for the waging of their war by other means.

4. Those who apprehended and detained KSM et al. treated them as enemy combatants from whom valuable intelligence was sought and received. Trying them in federal court creates otherwise unnecessary issues regarding the admissibility of this evidence and provides them another avenue of attack on those defending the United states against them.

5. The treatment of evidence in connection with the trial raises a serious threat that national security will be compromised.

6. The trial of KSM et al. in New York by itself raises severe security risks.

One of many puzzling aspects of the Obama administration’s decision to try Khalid Sheikh Mohammed and others in federal court is the fact that other terrorists will be tried by military tribunals. For example, Abd al-Rahim al Nashiri, who led the attack on the USS Cole, will be tried and sentenced by such a tribunal.
And what is happening in the pre-trail proceedings may be an indication of what is coming in New York.
“There is absolutely no reason for this court to presume that the facts contained in the government’s exhibits are accurate,” District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.

“Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said,” Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaeda forces.There are approximately 250 more detainees in “gitmo” awaiting just this type of Liberal justice!

This raises two questions: If the administration acknowledges that military tribunals are an adequate and appropriate venue in which to try terrorists, why is it so necessary to bring some to the U.S. for a jury trial accompanied by the full load of Constitutional protections? And how did the administration decide which terrorists to give public trials, which inevitably will turn into media circuses, rather than trial by military commissions?

Eric Holder answered the second question, if not the first, in the press conference in which he announced the trials:
“In each case, my decision as to whether to proceed in federal courts or military commissions was based on a protocol that the Departments of Justice and Defense developed, and that was announced publicly in July”.

“Because many cases could be prosecuted in either federal courts or military commissions, that protocol sets forth a number of factors, including the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated. All of these things must be considered. In consultation, again, with the secretary of defense, I have looked at all of the relevant factors and made case-by-case decisions for each detainee”.

Mr. Holder elaborated later in the press conference:

QUESTION: How much of a factor for you was it that in the case of the five 9/11 detainees you’re returning them basically to the scene of the crime?

HOLDER: “Well, that is something that typically happens in the criminal law. The cases are typically tried in the place where the offense occurred, and so that was one of the factors.
There are a number of other factors that went into making that determination, including the nature of the people who were the victims: largely civilians in New York.
In addition to that, this is a matter that, as I said, happened in this country as opposed to overseas, which is different from what we might do with regard to those who are going to be tried in the military commissions.
But that is a fundamental tenet of American jurisprudence, that crimes are tried in the places where they occur”.

This illustrates the perversity of mindlessly applying the criminal law template to terrorist attacks. What is the implication of Holder’s criteria? Put yourself in the place of a would-be terrorist: If you want to garner maximum publicity; if you want to make yourself into a world-famous martyr; if you want an endless platform for disseminating jihadist propaganda; if you want to be treated with kid gloves at all times; what should you do? That’s right: you should organize an attack on American soil that kills thousands. You’ll be rewarded with top-flight legal representation at taxpayer expense and a forum in which to advance the cause of jihad.
Like so many things the Obama administration does, this creates exactly the wrong incentives and needlessly puts American lives in danger. source: John Hinderaker

Former Attorney General Michael Mukasey is one of the many distinguished lawyers participating at the Federal Society’s annual national lawyers conference  in Washington this past week.
Mukasey did not mince his words about the decison to try KSM in federal court. He called this decision “not only unwise, but based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously-based ideology that calls on them to kill us.” Mukasey viewed the administration’s approach as “a return. . .to the mindset that prevailed before Sept. 11 that acts like the first World Trade Center bombing, the attacks on our embassies in Africa and other such acts can and should be treated as conventional crimes and tried in conventional courts.”

Mukasey explained some of the difficulties of using civilian courts to try terrorists. These include the discovery process, the public presentation of evidence, and other elements of a trial that “could turn a criminal proceeding into a cornucopia of information for those still at large and a circus for those in custody.”

He also noted that when terrorists like KSM were captured, we did not gather information on the assumption that it would be presented in federal court. Thus, the prosecution is at a disadvantage in proceeding down this road now. (Some will glibly say that this is the Bush administration’s fault for the way it handled KSM, but at that time the adminisration was properly focused on preventing a follow-up attack to 9/11).

Mukasey also pointed to the obvious security issues that will be associated with the KSM trial. All things considered, he concluded: “It would take a whole lot more credulousness than I have available to be optimistic about the outcome of this latest experiment.”  Source:


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