My Problem with the KSM Trial

I have been saying for years that some sort of due process needs to be applied to Gitmo detainees.  I am not knowledgeable enough to know if this should be a civilian trial or military tribunal or what, but just the fact that they are non-citizens does not give us the right to detain them indefinitely without due process.  Yeah, I get the POW/battlefield analogy, but one also has to reasonably admit the nature of this process today is different than in, say, the defined battlefields with combatants in uniforms in WWII.    The very question of who is a combatant is unclear, so it merits more due diligence to make sure these assertions are made correctly.

Anyway, I suppose I am happy KSM is getting some sort of due process.  But I must say I absolutely hate the precedent being set here -- no, not the one the Conservatives are worried about, bringing a terrorist to trial in a civilian court.  I don't like the precedent of a trial where the government promises that there is already a pre-determined outcome.  US Attorney General Holder seems to be saying there is no possibility of acquittal, but a trial without a possibility of acquittal is not a trial.


  1. tomw:

    This site is worth looking at if only for the freshness of 'thought outside the box' that is applied. Perhaps all this *should* be considered as piracy, afer all, if that will cover the situation, why not?

  2. tomw:

    Forgot to add, the KSM trial has no business in NYC. That is plain idiocy.

  3. Scott:

    Agreed this thing is insane.

    What the heck happens if he is acquitted? Without even that possibility this is merely spectacle.

    It is spectacle anyway, but with the chance of acquittal their is at least some substance.

  4. Kyle Bennett:

    ding ding ding. Coyote wins the Kewpie Doll. The entire purpose behind this is to get the public to accept, even clamor for, just one high-profile trial with a pre-determined outcome. Once they accept it in a case dominated by fear and blood-lust and free of even a whiff of doubt, they'll accept them as a matter of course whenever they think the subject is more likely than not guilty.

    It's been a while now that the general reaction to any acquittal has been "he got away with it" as opposed to "he's not guilty", so it was only a matter of time till they baked that raw batter into a full kangaroo-court loaf.

  5. Tom Nally:

    The rules of war are not established to protect combatants from either side, but to protect civilians. When a combatant abides by the rules of war, he wears a uniform, he wears his arms openly, he obeys a command structure, and he won't use civilians as shields. Doing all these things allows soldiers to distinguish their combatant adversaries from civilians, and thus allows civilians to be protected.

    Those who abide by these rules are called "legal combatants". A legal combatant captured on the battlefield (say an enemy tank commander) is entitled to good treatment while in captivity. Honoring the rules of war has earned him this. But this tank commander is not entitled to legal counsel as far as I know, nor is he entitled to "his day in court". There were thousands and thousands of "legal" Iraqi soldiers captured in both 1991 and 2003. None of them were given attorneys as far as I know. No one said this was a violation of their "rights".

    In addition, those who hold legal combatants can keep them in captivity until the cessation of hostilities, at which time they will be returned to their home countries. Keeping them in captivity removes them from the battlefield. Is there any disagreement that this is the proper way to handle legal combatants? Not that I know of.

    There is a grave danger if we start giving illegal combatants more "rights" than genuine legal combatants. The danger is not to us. The danger is to the civilians for whom the rules of war were designed to protect. If disregard for the rules of war earns you more rights than respect for the rules of war, then there is tremendous incentive to disregard them.

    Trying KSM in civilian court in New York richly incentivizes terrorists. It shows them that even if their attempts at terror fail, they may still obtain an opportunity to propagandize from the largest stage in the world, while their captors undergo self-flagellation. Consequently, the danger to civilians is ratched up. Civilians out there, watch the eff out.

    So, what should we do with KSM? To start, let's assuage our anguish by recognizing that KSM is, historically, being treated much better than illegal combatants captured a generation ago. During WWII, anyone fighting disguised as a civilian faced summary execution with the approval of just three officers (H/T, Shannon Love).

    If we really wanted to protect civilians, we would keep KSM in military custody, provide him with food and medical care, but otherwise provide him with conditions short of those provided legal combatants. KSM should be held until the "cessation of hostilities". This can be defined as the point at which the amorphous and ill-defined radical wing of Islam no longer desires to conquer western civilization by violent jihad. If that takes 100 years or longer, oh well. It's not the West that declared war on radical Islam. Radical Islam declared war on the West. It is up to them to end it.

  6. Link:

    Obama-Axelrod are adept at manipulating the news cycle. One example is how they bring up waterboarding from time to time as a way to get Cheney out of his crypt. This has been purposeful, and Holder has been involved.

    The KSM trial is meant to be big media circus distraction. Even if Obama is criticized over it, it means we're not criticizing him over other things.

  7. Methinks:

    Well done, Tom Nally.

    I also wonder how they're going to get around the little issue of not reading the terrorist his miranda rights. That usually gets the case thrown out of court on a technicality. If it doesn't this time, we set a precedent and that means that we needn't bother miranidizing anyone. Never mind the fact that this will be a kangaroo court for a terrorist. It will set precedent for kangaroo courts for all civilians.

    But, of course, this is what Obama wants. It's to his advantage to have a court where he can predetermine the outcome.

  8. Dan:

    Nice job, Coyote. You are right on about the importance of getting these guys on trial, and also about Holder's comment. If these guys are guilty, as he says, then why are they going to trial in the first place? Might as well just give them their injections now.

  9. Evil Red Scandi:

    Tom Nally nails it. The only thing I would add is that this sort of power - to indefinitely detain / interrogate / shoot / do whatever to an unlawful combatant must be done with the absolute greatest degree of transparency possible. I would also require that the President of the United States personally authorize each such action with an publicly-available executive order so that it's absolutely clear where the buck stops. From a practical standpoint, when dealing with unlawful combatants the military needs to either 'bust a cap' (to use the vernacular) on the battlefield so there's no prisoner to deal with, or drop their trousers and give the public every last scrap of information we have justifying the treatment of the prisoner.

    That's assuming we still want to 'play nice,' and continue to engage in Marquess of Queensberry-rules, Geneva Convention-happy warfare. The other practical alternative is that we have two modes - benign tolerance (just ignore them) and crazy bad-ass all-out warfare. By "crazy bad-ass all-out warfare," we would require the civilian populations the terrorists hide in to become self policing by making them fear us more than they do the terrorists. That is to say, we would find the general area (or country) the terrorists are in and bomb the crap out of it until it's assuredly terrorist-free. Nuclear weapons can be handy for that. I seriously doubt we would have to use that tactic more than once.

    In theory I'm all for a world where nobody's civil rights get violated, but the real world is not nearly so neat and tidy. Unfortunately, the world has always had and will always have dangerous sociopaths in well-armed groups. Sometimes they happen to run a country, and sometimes they act independently. Nobody wants to hear it, but weapons of mass destruction will become available to these groups. It's inevitable. It is certain that in the near future a bunch of nutjobs will acquire (and probably use) the power to destroy an entire major city. The question is how do we deter this with the least possible collateral damage to life and liberty? It's a evil, nasty, tough question with no really great answers. We either continue the "personal" approach we use now and egregiously violate the rights of small groups of people who are very probably guilty and with the greatest possible amount of transparency, oversight, and accountability - or we can scare the rest of the world so badly that attacking us becomes absolutely unthinkable and it becomes the best interest of every person and household pet on the planet that nobody within 50 miles of them tries to nuke or gas us.

    Better ideas are welcome.

  10. Evil Red Scandi:

    US Attorney General Holder seems to be saying there is no possibility of acquittal, but a trial without a possibility of acquittal is not a trial.

    I'm not terribly concerned about this aspect - they guy openly bragged about plotting and overseeing the 9/11 attacks. I trust Holder about as far as I can throw the Washington Monument, but the case against KSM is about as airtight as they come so I can see why he would say that.

    I'm far more concerned about the underlying legal theory here.

  11. Michael:

    We know 2 things. Holder was a senior partner at a law firm trying to get 12 gitmo prisoners free. And the he has no power to move the prisoners from gitmo to NYC. Only the president can make that order.

    I always found Holder to be sympathetic to terror and once he gets them in to civilian court, I think the judge is legally going to have to let them go.

  12. dr kill:

    Maybe I've been watching too much TV, but isn't it all tossed if the suspect isn't Miranda-ed? I think this fucker should be turned loose.

    And listening to the comments of Holder and Obama about certainty of outcome sickens me more than any other sickening comments these two sickening individuals have made.

  13. greg:

    I'm mostly troubled by the logic that the "right" of a fair trial is only open to citizens. Following that logic then, all rights must flow from the government. This is in stark contrast to the obvious, "we are all endowed by our creator with certain...etc.

    Just doesn't seem to be a very conservative viewpoint to hold.

  14. Henry Bowman:

    The entire Gitmo prison has been a disaster from the start. There's simply no way that any of these non-uniformed personnel should be brought to the U.S. for trial of any type. They should be interrogated where they are captured and summarily executed. Recall that the entire purpose (to the U.S.) of agreements such as the Geneva Convention, which these folks plainly do not fall under, despite court decisions to the contrary, is to protect American soldiers. American soldiers captured by Al Qaeda or the Taliban will be killed, sometimes mutilated, usually tortured.

    Note that none of the above applies to U.S. citizens arrested in the U.S., such as José Padilla.

  15. me:

    @Evil Red

    I find the idea of nuking the civilian populace hiding terrorist interesting. If only we had used that tactic against Texas when they were hiding Hosam Maher Husein Smadi, I think the war on terror would have gone much differently.

    Then again, with 5000 US soldiers victims of the Iraq war vs 100000 Iraqi civilians, we're probably not that far off from that idea.

  16. Rob:

    I have no legal training but elsewhere I read that if someone hasn't been read Miranda rights then any evidence obtained from them thereafter is inadmissible. However, any evidence obtained prior to KSM being taken into custody is fair game as well as evidence from other sources.

  17. Evil Red Scandi:

    @me - yup, the idea has a huge suck factor. It stinks in many ways. The problem is that nobody has come up with a theory that doesn't have a massive suck factor. If somebody does, we could give them a Nobel Peace prize if it hadn't been cheapened to the point where it's now more of an insult than it is an award.

    Seriously though, I admit the theory sucks. There is no way to nuke a civilian population and call it a good day. We mostly agree that what Bush did sucks. Pretty much every other idea I've seen sucks as well. As I said, better ideas are welcome. Please. Somebody.

  18. Tom Nally:

    Greg, non-citizens who have committed crimes in the U.S., but who are otherwise not engaged in warfare against the U.S., are deserving of a fair trial like citizens.

    But the expansive nature of radical Islam's battle against the West -- expansive in both time and geography -- gives it the characterstics of a war. That's why the U.S. has dispatched uniformed soldiers to face these combatants rather than teams of FBI agents with polished shoes, neckties, and the latest Blackberries in their silver-buckled briefcases.

    Admittedly, this war is different from previous wars against well-defined nation-states, but a war it is nonetheless. To some extent, radical Islamic jihad is formless. The extent to which teams of jihadi combatants are centrally controlled is limited. (Sometimes they are; sometimes they ain't.) But in my view, this shouldn't disqualify us from calling it a war.

    To characterize multi-national jihad as a series of "crimes" suggests that we respond to them with defensive measures. After all, you don't arrest and jail a bank robber until he robs a bank. That was America's approach to multi-national jihad on September 10th, 2001. September 11th 2001 showed us that approach was inadequate.

    Were the jihadis criminals only, they would deserve trials regardless of their citizenship. But as combatants in a war, and illegal ones at that, they are not deserving in my humble view.

  19. Jeff:

    I believe these detainees should have been tried in their origin countries, or by military tribunal. My reasoning is different from most of what you read.

    I'm concerned about our ability to gather future human intelligence in the field. The discovery process in a civilian courtroom is completely inadequate at preserving the secrecy and safety of our sources. Even if the court perfectly preserves the identity of every source in KSM's trial, it doesn't matter. The fear that their identity *might* be revealed in a courtroom will prevent future sources from cooperating.

    The terrorist leaders we're up against are certainly capable of executing a few innocent people and claiming they were spies discovered during American trials.

  20. ColoComment:

    It's grandstanding and it's a diversion. There is absolutely no reason or purpose to trying KSM in an Art. III court. The prior congress and president expended a great deal of effort and trouble to arrive at a process and procedures for adjudication of these illegal combatants. The Military Commissions Act of 2006 authorized courts and a judicial process very similar to the USMJ that our own military personnel are subject to, save for considerations of national security and intelligence sourcing.

    See for example DoD press release dated January 2007:

    Excerpt: "As required by the Military Commissions Act of 2006, the rules and procedures in the Manual for Military Commissions apply the principles of law and the rules of evidence used in general courts-martial, so far as the secretary of Defense considers practicable or consistent with military or intelligence activities. The department believes that these rules and procedures meet that statutory standard."

    There is NO rationale that adequately explains this decision by AG Holder and President Obama.

    BTW, we have a multi-million dollar, state-of-the-art detention facility in Guantanamo, with secure courtrooms, secure medical care facilities, secure athletic facilities, and there's nowhere for any of the inmates to escape to, or anyone for their compadres to hold hostage to exchange for inmate release. The mythology that Guantanamo's simple existence is a recruiting tool for terrorists is simply ridiculous: they hate us, our culture, our modernity, and our global influence, and a poster of Guantanamo is not going to be the ultimate persuasion that convinces some joker to blow himself up & kill civilians.

    For more on KSM in NY, I highly recommend Bill Whittle's most recent oral essay on Guantanamo and its detainees on PJTV. (Unfortunately, you have to watch an ad for PJTV to start.)

    Go here to watch:

  21. palm beach sugar daddy ken doll:

    was going to say something all snarky & wiseassy, but tom nally nailed it perfectly. nothing left to be said. we are dealing with mad dogs by using the suicidal strategy of granting them legal rights and privileges *they are in no way entitled to*. and the peabrained jackoffs in washington are assuring us that this will "result in less terrorism".

    that's it - that's the last straw. am gonna dig up the CCW permit and carry the frickin .45 and the 2 extra mags, i don't care if they *do* weigh 5 pounds, and i'll wear a jacket to cover it even in 110-degree summer heat. the monster's well and truly out of the box now - and obama/holder doing their level best to entice him & his monster buddies to gaily frolic about, bravely killing unarmed women and children, as all true warriors dream of.

    look around carefully next time you're in a restaurant or a movie theater - for 2 or more gunmen, places like that are almost *perfectly* designed for use as a 'kill box'. sooner or later, knowing they'll get a fair trial with miranda warnings and lawyers and 'discovery' rules that'll let them see who's infiltrating them - sooner or later, the proud, brave, manly lions of islam will pop up shooting in a restaurant/movie theater/???

  22. Larrry Zane:

    Military Trial is appropriate. Why tell terrorists that when they commit mass murder they will get the same treatment as our citizens. Either its a war or its not.

  23. morganovich:

    the aspect of this that i can;t quite figure out is this:

    what is the government/prosecution going to do about defense subpoenas of witnesses?

    this seems like a no win tactical blunder for the administration. if they allow witnesses to be called, we get a whole CIA waterboarding sideshow and the dismissal of all evidence obtained under torture. sure, this could be a way to try and go back after bush administration officials, but it will be deeply unpopular with the republicans and much of the center.

    if they claim state secrets/executive privilege etc, then they are wide open to all accusations of secrecy leveled at the former administration. this too will be unpopular, but with the core democrat base.

    so i don't get it. what's the game here? could they possibly think they can just use pre-waterboarding evidence and that they can keep the intelligence networks out of this?

    could they possibly think that a bush admin witchhunt won't rebound at them and at congressional leaders?

  24. AStoner:

    Do you really believe it is in the best interest of the USA and it's citizens (you, me, our families) to give US citizen rights to unlawful enemy combatants that would never be afforded to lawful combatants? Where judges can throw out evidence due to the fact that KSM was water-boarded or not fed the proper meal, or was kept up too late one night or many. Where a judge could just simply throw the whole case out because he is outraged that the terrorist was 'tortured'. When it might be possible that one or more of the loony left anti-war rejects in this country could in effect get picked to be one 'a jury of his peers' and cause a mistrial or hung jury? You really should have an opinion about where these terrorists get tried. I like your blog, but on some things, you really seem to be a wimp or totally dishonest.

  25. Eddie:

    The potential for the civilian legal authorities to muck around with military intelligence during an ongoing conflict is way too high for this sort of thing. All it takes is for one lawyer with a grudge against US policy, and a sympathetic judge to unravel years and years of intelligence network construction.

    Besides which, it feels like another step towards declaring everything to be a "police action." You know how well those turn out...

  26. palm beach sugar daddy ken doll:

    ok then, howza 'bout this? we conduct trials at highly secure military installations (but open to the press), conducted and judged by US military officers to underscore the unprecedented heinous nature of the crimes the accused are on trial for - and for which the regular criminal justice system is unable to handle, not being designed for such things as 'state-planned, sponsored, and supported premeditated mass murder in which innocent, unarmed civilians are deemed legitimate targets on a scale so large as to render the charge of "murder" almost meaningless - (and to all the fans/enemies of sir arthur "bomber" harris, spare me the bitter & ironic asides).....

    BUT, in order to satisfy the o-so-tender sensibilities of the proud, manly, brave islamic warriors whose favorite targets unaccountably seem to be women and children, we conduct their military tribunals under *shariah law*. in which as i understand it, the accused has 2 chances: "slim", and "none". the appeals process in shariah is also fairly brisk: IIRC, they get one appeal, which takes place later the day of conviction and lasts about 20 minutes.

    then the next day, they're beheaded, and the carcasses fed to the hogs.

    everybody's happy, everybody wins. civilian courts not tied up for years; psychotic terrorists are judged by their own big book o' bullshiite; the world sees we (finally) take this seriously. hell, put it on pay-per-view, and you could keep the social security ponzi scheme afloat for another decade.

  27. Dr. T:

    The surviving men who abetted the suicide flights are foreign terrorists. As such, they have no constitutional rights. Because they were terrorists and not guerilla soldiers in a war, they have no rights under the Geneva Convention or international law. In a phrase, they have no legal rights. We can throw them in a dungeon until they rot, we can shoot them tomorrow, or we can torture them for months.

    So much for the legal. What about the ethical. Should they be tried? I see no reason for a trial. The evidence appears conclusive, and a trial just gives these scum an international forum for spouting their hatreds. It also puts us, as a nation, back in the crosshairs of Muslim terrorists. More of our citizens will die.

    My belief is that the government should release a sanitized version of the evidence along with testimony from respected jurors who reviewed the full evidence and believe it to be conclusive. This process will show that we didn't round up Arabs at random, but it will not give a voice to the terrorists.

  28. Gil:

    Dr T calls a spade a spade here - they are enemy combatants who do not follow the rules of conventional warfare and therefore do not get any Prisoner of War protection and they are most definitely not U.S. citizens who have the right to pleasantaries such Miranda Rights or Habeas Corpus.

  29. Mesa Econoguy:

    Obama massively prejudged KSM, just as Nixon prejudged Charles Manson.

    This asshole should have been waterboarded to death long ago. No trial necessary. Just bye bye…..see ya, nice and quiet.

    We tried the criminal prosecution angle before – it didn’t work. Stupidity is repeating mistakes.

  30. NormD:

    A side of this that has not received much attention is how this will change the US criminal system.

    Lets start with the assumption that US judges won't want to release KSM. But, under current US law, a suspect must be released if their trial took an undue amount of time of they weren't Mirandized or if the chain of evidence has been broken or a dozen other things. The judge must then either decide to release KSM or find that in some situations these problems are acceptable. And that will establish new precedents. Precedents that will apply to all of us.

    This is a truly stupid move on Obama's part.

    I think the only solution is a separate legal framework, perhaps the Military Commissions (I am not an expert) where things that make Coyote uncomfortable, like indefinite detention, can be addressed.

    While in some psychic sense I may be in favor of executing a terrorist caught on a battlefield, this is workable for many reasons, not the least of which is that it would be a terrible burden to put on our soldiers who really don't want to shoot someone who is begging for mercy. Add in that not all terrorists wear Terrorist T-shirts and this "solution" just falls apart.

  31. Ted Rado:

    If a person is captured during a war, he remains a captive until the war is over. If he is a combatant out of uniform, he is shot.

    In WWII, the Germans alone captured over 10 million Russians, Poles, French, Brits, etc. Other combatants captured millions more. These were held until the war ended, or if out of uniform, were shot. Can you imagine appointing a lawyer for each of them? This would be a great way of winning a war: Let millions of your troops surrender and swamp the enemy's legal system.

    Come to think of it, swamping our legal system might be a good idea!

  32. AStoner:

    Everyone who says it is a stupid move on Obama's part are missing the direction that Obama wants to take this country. His goals it to turn this country into something it not and never was. Police state policies will go a long way towards giving him the power to detain political enemies.

  33. Steve W from Ford:

    I have puzzled over the reasoning behind Obama moving the trials to civilian courts given the obvious political perils. I have come to a conclusion that I hate to even believe but logic, as I see it, leaves me no alternative. My inescapable conclusion is that Obama is ACTIVELY trying to undermine faith in our current system of justice. Nothing else makes any sense to me but I really hate to believe this. Please show me where have I gone wrong?

    Obama is a lawyer and taught constitutional law and so is well aware of the rights of defendants under our legal system as well as the legal basis for our constitutional form of government.

    Our legal system assumes that ANY defendant, no matter how heinous the crime, is considered innocent until proven guilty and that every defendant is entitled to certain undeniable rights which include:

    The right not to be forced to self incriminate themselves.This right encompasses the basic right to not be tortured into making a confession.

    The right to defend oneself freely and openly and to have access to all relevant information needed to do so.

    The fundamental right to confront, in a free and open court, their accusers.

    These rights are part of what distinguish our system of justice from that under tyrannical regimes.
    Our system of justice is fundamental to our shared belief in the legitimacy of the whole American system of government which relies upon the consent of the governed.
    If any John Doe defendant was brought before the bar of justice with the FACTS present in the cases of these defendants can anyone question that they would be acquitted?
    If John Doe could show, as KSM can surely show,the following:

    That he had been held for years without counsel.

    That he had been "tortured" repeatedly ( as attested to by the US Attorney General and the President) during the time of confinement.

    That he had repeatedly been threatened by agents of the same government now prosecuting him that they would use the full force of the government including that of the military to KILL his family if he did not provide the answers the government wanted.

    That both the President of the US and his attorney general had already declared him guilty and further said he was certain to be executed after sentence was passed.

    That both the President and Attorney General of the US were on record as declaring that even if acquitted he would have NO CHANCE of being released!

    Would ANY such a defendant not HAVE to be acquitted under our system? Could a system that professed to be based on the values we all say we hold, convict ANYONE under this set of facts?

    If China, for example, tried a defendant after doing all this and then found them guilty and executed them, would we not descry this as another example of tyranny?

    If the above is true, how then can Obama not know that any result that comes out of the civilian court system will inevitably damage the whole system of justice we operate under in the minds of much of the public?

    If KSM is acquitted how many will call it a triumph of principle, even though it might well be such?

    If he is convicted have we not shown the law to be tyrannical under duress?

    Either way our system of justice and so the legitimacy of our form of governmental is undermined and Obama has to know this.

  34. TheoB:

    Holder would say that, wouldn't he? No prosecutor ever goes to court stating "we'll probably loose the chase".

  35. me:

    Speaking of justice... (

    'What sort of a newly elected President would get into office and then start demanding that actions From the Past -- rather than the Future -- be investigated, just because they might be "criminal"?'

    Great writing, worth reading.

  36. docgary:

    Well stated, Tom Nally!

    Re: lack of Miranda warning

    According to retired Federal Judge Napolitano on Fox news, KSM et al
    WERE Mirandized at Gitmo...not an issue, according to the judge.

    Of interest is an article in the NY Times and NY Post Sunday, November 22.
    Germany is quite incensed that evidence obtained by the German gov't regarding the group's planning 9-11 in Hamburg was handed over to the US with the stipulation that the death penalty would not be sought.
    Germany is making loud threats that if the death penalty is sought (as per Holder and Obama)the German gov't may withhold said evidence.

    You cant make this sh*t up!

  37. Jim Collins:

    Simple solution for a complex problem. Any aircraft leaving Gitmo for New York has to pass through the Bermuda Triangle to get there. Let's just have the plane disappear. End of problem. The Air Force has to have some C-130's with a high time airframe that could make a nice artificial reef some place. Take off, set the autopilot and bail out.

  38. OBloodyhell:

    FWIW, Carl, over at No Oil For Pacifists, covers this topic fairly thoroughly, in layman's terms (He himself is a DC attorney, and thus one presumes has a thorough grasp of the legal niceties):

    Ask the Neo-Con, Part XI
    Long-time reader Powerboss asked my views on Attorney General Holder's decision to try Khalid Sheikh Mohammed in a New York City Federal District Court rather than have him face a military tribunal. This post touches on the practical problems with the decision while focusing on an erroneous legal presumption that's become widespread among lefties....(snip)...