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)…

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!

‘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.

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.

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!

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.

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.