The coming KSM trial fiasco Tom Smith

John Yoo in the WSJ.  Looks like it could be pretty bad.  

As a mere academic spectator, I would first like to just understand what is going on here.  To see this decision as a net political loser seems like a no-brainer to me.  Also, while I'm not an expert in this area, it seems clear trying the terrorists in a civil court is not legally compelled.  So what is going on? Playing to the left-wing base?  Is that really necessary?  Playing to the international lawyer-community elite?  Also seems like a pretty marginal audience, politically speaking.  Or is this just driven by legal ideology/philosophy -- military tribunals are just too unfair, not due procedural enough, and so on?  

I bet the climate inside the DOJ now is very hostile to the whole idea of military tribunals.  I bet there was even controversy among Holder's advisors over whether even to seek the death penalty.  Not that this makes me any big expert, but I was an associate for about four years at the DC law firm from which AG Holder came to assume his current position.  So I have seen the liberal DC lawyer in the wild, as it were.  They are curious creatures who see the world very differently from you and me, or me anyway.  Not a lot of skepticism about international law, not a lot of respect for the military, absolutely no problem I would guess with giving the terrorists the best defense lawyers money can buy and the full panoply of protections under the Constitution -- I would guess.  So maybe this is one of those decisions that looks bizarre from the outside but was almost inevitable in its ideological context. Or maybe it is just a pure boneheaded mistake.

If you were a federal district judge would you want this case?  Are there any FDJ's in the SDNY who are truly up to this?  It might be one of those cases where any judge who wanted it, you would know was too crazy to entrust with it.

Comments

[James Mulis]

As has been discussed elsewhere, a civilian trial would offer an extremely good opportunity to bash the Bush adminstration (again). This is a recurring theme for Obama. I'm wondering what percentage of discovery and testimony will be reserved for elucidating the horrors of "enhanced" interrogation? Would it be 20%? 40%?

Imagine the benefit of having a nightly rehash of the trial on television, extending over many months in which we could come to know the true depravity of Bush and Chenney's approach to fighting terrorism. If only they had thrown the perps in a federal prison to start, we could have avoided all this ugliness! Having the public not concentrating on the economy being in the toilet would be another advantage.

This civilian approach to prosecution will reward the Obama administration with a handy out too, in case somehow KSM manages to beat the charges due to eveidence not being admisible: It's Bush's fault!

I don't know. Maybe I shouldn't be so cynical.

[james wilson]

I think this is a tremendous miscalulation by the Obots, an unmanagable minefield made of their own hubris. But never interrupt an enemy when he is making a mistake.

[Dan Simon]

I said it first seven years ago, and I'll say it again: the real travesty is not that a murderous terrorist is being treated as a common criminal, but rather that most everyone understands this result to be a spectacularly lucky break for him. If America had a sane criminal justice system, then the American public would have no trouble trusting it to deal appropriately with KSM and his ilk. But America doesn't have a sane criminal justice system--it has, instead, a kind of weird cult that's too obsessed with its own incomprehensible theology and rituals to expend much energy protecting the public from criminals and terrorists.

Sure, it will botch the job of bringing KSM to justice--but that's simply a reminder of how regularly it botches the job of deterring the thousands of murderers and hoodlums who collectively cause a great deal more damage than any single terrorist ever did. To be outraged specifically at the prospect of a notorious terrorist being brought to trial--as if non-terrorist murderers were a minor problem, suitable for leaving a hopelessly broken system to deal with--is to miss the point completely.

[Larry]

Democrat politicians and the lawyers they appoint have a different view of fighting a war than the vast majority of the country has. To them, it's a criminal justice matter. Read these terrorists their Miranda rights. Appoint first-rate lawyers for them. And try them in US District Court.

I suspect that many of these liberal lawyers have more respect for supporters of the terrorists than for US soldiers. They are certainly more solicitous of them. That's why just about the first thing out of Obama's mouth after the Ft. Hood shooting was we should be careful of acting anti-Muslim.

As appalling as it is for Americans to lean over backwards to be solicitous of the other side in this war, I expect it from these people. It's more surprising that a majority of American voters put this guy in office. A guy who told us all in his autobiographies how left-wing and anti-American he was, and who surrounded himself with people like Bill Ayers and Jeremiah Wright, was bound to be a left-winger who would promote the anti-American views, treat terrorist attackers as criminal suspects to be tried in court, and would appoint left-wing lawyers to posts in his administration.

Most voters are either stupid or horribly ignorant. There is a school of thought that this voter ignorance is rational. And it may have been rational before Islamic terrorists started killing us in large numbers. It isn't now.