Obama looks like he'll overrule Holder, give KSM a military trial

[pfife]

Originally Posted by Blue Square Thing

Does the Bill of Right say you have to be a citizen to get trial by jury in open court?

check this out bst

Susan Collins spreads central myth about the Constitution - Glenn Greenwald - Salon.com

[Blue Square Thing]

Yeah, but all that supreme court stuff is overrated isn't it.

[sub rosa]

the congress has not declared war on any country in this "war on terror" and ksm is not a soldier in any country's armed forces that i'm aware of. please someone correct me if that is not true.

one real problem that i have is that my government is implying that no matter what the result, ksm will be detained indefinitely. i'm sorry, but that's just not in keeping with my sense of justice and fundamental fairness.

everyone is entitled to due process - everyone. no exceptions. if you've got the goods on him, then you should have no problem convicting him. if not, take him back to where you found him.

[TheCouga]

This is what happens when the entire intellectual basis for a political movement (conservatism) is shredded and scrapped in favor of third-rate populism.

This country will become ungovernable if the Glenn Becks and Rush Limbaughs and the Roger Aileses aren't marginalized. About 40% of this country is completely nuts from the phony, manufactured outrage these people produce. If that number ever gets to 50%, bye-bye America.

[sinister porpoise]

Originally Posted by Mark The Shark

washingtonpost.com

I think Obama has made a wise decision here, even if he'll make his own party go bonkers. My major concern with a civilian trial was the fact that defendants would be entitled to discovery, including discovery of classified materials. Now classified materials will presumably stay classified, since there will be a military lawyer provided to KSM.

TRYING KHALID SHEIKH MOHAMMAD IN FEDERAL COURT IS NOT END OF WORLD

Several Republican lawmakers have stated on cable news channels that significant classified information secured by KSM’s attorneys through discovery process could be shared with terror organizations or other terrorists. Once again these critics fail to inform the public that the Classified Information Procedures Act (“CIPA”) offers enough safeguards to prevent any breaches of national security interests. 4/ Congress established CIPA for the very specific purpose of handling discovery requests for classified information in criminal cases. Classified information under CIPA includes “information or material that has been determined by the United States Government, pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security.” 5/ The Second Circuit Court of Appeals, which oversees all New York federal district courts, recently reaffirmed the vitality of CIPA by saying it is “meant to protect and restrict discovery of classified information in a way that does not impair the defendant’s right to a fair trial.” 6/

Section 4 of CIPA establishes procedures for discovery of classified information:

“The court, upon a sufficient showing, may authorize the United States to delete specified items of classified information from documents to be made available to the defendant through discovery under the Federal Rules of Criminal Procedure, to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove. The court may permit the United States to make a request for such authorization in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States will be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.” 7/

more at link

[Who is the Drizzle?]

Originally Posted by Blue Square Thing

Does the Bill of Right say you have to be a citizen to get trial by jury in open court?

Originally Posted by chasfh

He is not a soldier. He is a civilian. We should not be conferring the lofty status of soldier onto civilian criminals. That's what people from his organization want.

And you don't have to be an American citizen to be guaranteed 5th Amendment rights under the Constitution. Otherwise we could dispense with the whole trial charade and put all foreigners directly into prison.

Well that's why I'm interested/concerned about the constitutionality of it. But that aside, I'm not going to condemn it as some moral outrage that a guy who had a heavy hand in killing thousands of people doesn't get a trial by his peers (whoever they would be). I'm more inclined to say tough ****, ksm.

[chasfh]

Originally Posted by Who is the Drizzle?

Well that's why I'm interested/concerned about the constitutionality of it. But that aside, I'm not going to condemn it as some moral outrage that a guy who had a heavy hand in killing thousands of people doesn't get a trial by his peers (whoever they would be). I'm more inclined to say tough ****, ksm.

Are you suggesting that if someone is alleged that to have been involved in killing thousands of people, he wouldn't deserve due process? If that is what you're saying, I would then ask, does someone deserve due process if he is involved in the killing of a single person?

[chasfh]

As far as I can tell, the irony in all this that while it is those people who proudly call themselves conservatives who are calling for this civilian criminal to be denied a civilian court trial (in part because he is a foreign national), under any conservative interpretation of the Fifth Amendment, KSM must be tried in civilian court. Only a broadly liberal interpretation of this amendment could hold that he should be deprived of due process and tried in military court instead.

[Who is the Drizzle?]

Originally Posted by chasfh

Are you suggesting that if someone is alleged that to have been involved in killing thousands of people, he wouldn't deserve due process? If that is what you're saying, I would then ask, does someone deserve due process if he is involved in the killing of a single person?

Let me cite the question that you really meant to ask:

If someone is involved in the hijacking of a plane, which flew it into a building that, unknown to him, wasn't full but only contained 1 security guard, would that person deserve due process?

Non legally speaking, I would say no, not necessarily.

[sub rosa]

Originally Posted by Who is the Drizzle?

But that aside, I'm not going to condemn it as some moral outrage that a guy who had a heavy hand in killing thousands of people doesn't get a trial by his peers (whoever they would be). I'm more inclined to say tough ****, ksm.

one of the bedrocks of our criminal justice system is the presumption of innocence. if we can't start there, then i guess further discussion about due process is pointless.

[chasfh]

Originally Posted by Who is the Drizzle?

Let me cite the question that you really meant to ask:

If someone is involved in the hijacking of a plane, which flew it into a building that, unknown to him, wasn't full but only contained 1 security guard, would that person deserve due process?

Non legally speaking, I would say no, not necessarily.

No, that is not the question I meant to ask, despite your assertion couched in the pretense of certainty. I asked exactly the question I meant to, and it was and is my intention to separate this specific incidence from the principle.

You have, I think, confirmed that you believe that anyone alleged to have been involved in the killing of thousands of people does not deserve due process. If not, then please correct me. If so, then my question now, as before, is: does someone deserve due process if he is alleged to have been involved in the killing of a single person?

[Mark The Shark]

Originally Posted by chasfh

He is not a soldier. He is a civilian. We should not be conferring the lofty status of soldier onto civilian criminals. That's what people from his organization want.

He's being treated like a spy, not a soldier. He is facing the same military tribunals that we set up for Nazi saboteurs who were captured in the US.

[Who is the Drizzle?]

Originally Posted by sub rosa

one of the bedrocks of our criminal justice system is the presumption of innocence. if we can't start there, then i guess further discussion about due process is pointless.

I'm neither trying nor judging him, so I don't see why I'm not allowed to have such a presumption.

[Who is the Drizzle?]

Originally Posted by chasfh

No, that is not the question I meant to ask, despite your assertion couched in the pretense of certainty. I asked exactly the question I meant to, and it was and is my intention to separate this specific incidence from the principle.

I knew something like this would be your response! You're touchy that way.

Originally Posted by chasfh

You have, I think, confirmed that you believe that anyone alleged to have been involved in the killing of thousands of people does not deserve due process. If not, then please correct me. If so, then my question now, as before, is: does someone deserve due process if he is alleged to have been involved in the killing of a single person?

I'm saying the number of people is largely irrelevant, but I would say the intent must be there to do a large crime against a general population. And I thought I was pretty clear in answering your question that yes, in certain circumstances, such as the one I described that was as similar to the current situation as I could make it, I think someone may not deserve due process, and a military trial would be more appropriate. Obviously, it's a very narrow set of war-like conditions where I would think this.

[chasfh]

Originally Posted by Who is the Drizzle?

I knew something like this would be your response! You're touchy that way.

No, I'm not being touchy at all. I was merely clarifying the intention of my question against your assertion, which was by any measure baseless.

Originally Posted by Who is the Drizzle?

I'm saying the number of people is largely irrelevant, but I would say the intent must be there to do a large crime against a general population. And I thought I was pretty clear in answering your question that yes, in certain circumstances, such as the one I described that was as similar to the current situation as I could make it, I think someone may not deserve due process, and a military trial would be more appropriate. Obviously, it's a very narrow set of war-like conditions where I would think this.

OK, so you're saying if the person is alleged to have intended to kill thousands of people by, say, running a plane into a building, then they forfeit their constitutional right to due process, regardless of how many people they actually kill. You're also suggesting this is, de facto, an act of war. So, OK.

So now the question is, how many people do they have to intend to kill in order to forfeit due process? Does it have to be in the thousands? Or would, say, an intent to kill 100 be enough?

[chasfh]

Originally Posted by Mark The Shark

He's being treated like a spy, not a soldier. He is facing the same military tribunals that we set up for Nazi saboteurs who were captured in the US.

Are they alleging that he is a spy? I'm not asking whether they are treating him like one -- I am asking whether they are trying him under the laws pertaining to espionage?

[Who is the Drizzle?]

Originally Posted by chasfh

No, I'm not being touchy at all. I was merely clarifying the intention of my question against your assertion, which was by any measure baseless.

Let me rephrase: you question was stupid, IMO. I knew that you were going to go down this line, so I re-phrased it in a way that would get you an answer you were looking for.

Originally Posted by chasfh

OK, so you're saying if the person is alleged to have intended to kill thousands of people by, say, running a plane into a building, then they forfeit their constitutional right to due process, regardless of how many people they actually kill. You're also suggesting this is, de facto, an act of war. So, OK.

So now the question is, how many people do they have to intend to kill in order to forfeit due process? Does it have to be in the thousands? Or would, say, an intent to kill 100 be enough?

Umm, as many as they can? Thought that one was obvious.

[sinister porpoise]

Originally Posted by Who is the Drizzle?

I'm saying the number of people is largely irrelevant, but I would say the intent must be there to do a large crime against a general population. And I thought I was pretty clear in answering your question that yes, in certain circumstances, such as the one I described that was as similar to the current situation as I could make it, I think someone may not deserve due process, and a military trial would be more appropriate. Obviously, it's a very narrow set of war-like conditions where I would think this.

Can I assume from this that you believe alleged pedophiles, rapists, and murderers (uhh maybe if they only kill a few people) do deserve due process? As opposed to alleged terrorists who don't

We don't give any particular person a fair trial because we individualize that they deserve it or not..

[Who is the Drizzle?]

I need to go, I realize I can't define what the line is...I mean if he intended to kill 50 people maybe I'd feel different. It's one of those questions I can't answer......I mean if you could kill 100 to save 120, would you do it? I don't feel real strongly about it one way or the other from just a common perspective, and ain't a lawyer or judge so don't really care from that perspective either.

[Who is the Drizzle?]

Originally Posted by sinister porpoise

Can I assume from this that you believe alleged pedophiles, rapists, and murderers (uhh maybe if they only kill a few people) do deserve due process? As opposed to alleged terrorists who don't

Yes.

Maybe if we weren't in a de facto war I'd feel different about ksm.

[billms]

Originally Posted by Mark The Shark

He's being treated like a spy, not a soldier. He is facing the same military tribunals that we set up for Nazi saboteurs who were captured in the US.

We were at war then and we are not now. Furthermore I've been told that the current military tribunals are the result of relatively recently passed laws. Finally, he obviously was not spying on us - that is ridiculous.

[Mark The Shark]

Originally Posted by chasfh

Are they alleging that he is a spy? I'm not asking whether they are treating him like one -- I am asking whether they are trying him under the laws pertaining to espionage?

He's probably more akin to a pirate or saboteur -- who have also been traditionally tried by the military.

[sub rosa]

Originally Posted by Mark The Shark

He's being treated like a spy, not a soldier. He is facing the same military tribunals that we set up for Nazi saboteurs who were captured in the US.

german agents. from germany. the country that we declared war against?

makes sense we would use military tribunals.

ksm is nothing like that.

[sub rosa]

Originally Posted by Who is the Drizzle?

I'm neither trying nor judging him, so I don't see why I'm not allowed to have such a presumption.

no, but we are sorta tossing around ideas and arguing about what procedures are appropriate. i don't think it serves the interests of justice or the legal traditions of the united states to design due process around a presumption of guilt.

[MrDeeds]

Why do they care whether it's in a civilian or military court? Even if it was in a civilian court, we still have people within the government and administration assuring that public if KSM is acquitted he will not be released. For those who are so concerned, what does that say to the rest of the world? What a farce.

[MrDeeds]

Originally Posted by sub rosa

no, but we are sorta tossing around ideas and arguing about what procedures are appropriate. i don't think it serves the interests of justice or the legal traditions of the united states to design due process around a presumption of guilt.

Is it within the legal tradition of the United States to assure the public that a defendant will not be released if he is found not guilty? Every damn politician has promised that KSM is going to be locked away. There is no due process in this case.

[sub rosa]

Originally Posted by MrDeeds

Why do they care whether it's in a civilian or military court? Even if it was in a civilian court, we still have people within the government and administration assuring that public if KSM is acquitted he will not be released. For those who are so concerned, what does that say to the rest of the world? What a farce.

it says the united states is not interested in justice or fairness. it hurts our credibility and standing in the world, imo.

Originally Posted by MrDeeds

Is it within the legal tradition of the United States to assure the public that a defendant will not be released if he is found not guilty?

absolutely not. it's a shameful, unamerican policy.

[billms]

Originally Posted by MrDeeds

Why do they care whether it's in a civilian or military court? Even if it was in a civilian court, we still have people within the government and administration assuring that public if KSM is acquitted he will not be released. For those who are so concerned, what does that say to the rest of the world? What a farce.

Those are mostly within the justice department saying exactly what prosecutors always say - the guys guilty and will not get off.

Are judges saying that? They do have ultimate say, don't you know.

[sinister porpoise]

Originally Posted by MrDeeds

Is it within the legal tradition of the United States to assure the public that a defendant will not be released if he is found not guilty? Every damn politician has promised that KSM is going to be locked away. There is no due process in this case.

On what basis are they saying he won't be released? Perhaps that is relevant to your question

[billms]

And who exactly? I think I recall Holder saying something. But what exactly have these other every damn politician said?

[billms]

But pressed today by Sen. Lindsey Graham, Republican of South Carolina, about what might happen "if, by some one in a million fluke, one of the defendants were acquitted," Holder responded in effect that they won't be released.

First, he noted, Congress has already barred any Guantánamo detainees from being released inside the United States. But then, pressed again about what would happen "if one of these terrorists" in the future were found not guilty or given a short sentence, Holder agreed that the Justice Department would still retain the authority to lock them up as enemy combatants.

"I certainly think that under the regime that we are contemplating, the potential for detaining people under the laws of war, we would retain that ability," Holder said.

"Yes," replied Graham. "So in the Sheikh Mohammed case, we've never going to let him go if something happened wrong in the federal court."

I did find the above at 'Heads I Win, Tails You Lose': In 9/11 Case, KSM Won't Walk Free Even If Found Not Guilty - Declassified Blog - Newsweek.com

This is what I recall hearing - which actually is *not* the same as what Deeds said.

[MrDeeds]

Originally Posted by sinister porpoise

On what basis are they saying he won't be released? Perhaps that is relevant to your question

But pressed today by Sen. Lindsey Graham, Republican of South Carolina, about what might happen "if, by some one in a million fluke, one of the defendants were acquitted," Holder responded in effect that they won't be released.
First, he noted, Congress has already barred any Guantánamo detainees from being released inside the United States. But then, pressed again about what would happen "if one of these terrorists" in the future were found not guilty or given a short sentence, Holder agreed that the Justice Department would still retain the authority to lock them up as enemy combatants.

'Heads I Win, Tails You Lose': In 9/11 Case, KSM Won't Walk Free Even If Found Not Guilty - Declassified Blog - Newsweek.com

I don't have the time, but I could compile quote after quote from people in the government who are promising to lock up KSM and others if they are somehow acquitted. What does that say to the rest of the world? The USA is evil! It's why I don't understand why people are so up in arms about this decision. The whole thing is a sham.

[billms]

That is "in effect" as in how the writer interpreted.

Actually, as I showed and you clipped, Holder said that the administration had - in his opinion - the *option* of holding KSM. He very clearly did not say what you are suggesting.

You could compile quote after quote - but I bet you most of them would miss the mark, as badly as this one did.

[chasfh]

Originally Posted by Who is the Drizzle?

Let me rephrase: you question was stupid, IMO. I knew that you were going to go down this line, so I re-phrased it in a way that would get you an answer you were looking for.

So this is the best you have? "You question was stupid"? Really? That's your level of debate? Huh.

No matter. You pretty much defined your position in a subsequent post, anyway. You think you'd feel different if it were 50 instead of thousands, but you don't know for sure. And you think there's a line above which due process can be appropriately denied, but you can't define it. And ultimately, you just don't feel so strongly about it, anyway. Apparently, all you really want is to make sure this guy KSM has every bad thing happen to him that is possible, as though the goal were to implement Christian Hell on Earth for him, and that suspending the protections that every other civilian is granted by the Constitution should certainly be part of that equation.

And that's totally OK. You are free to feel that way, and it is not at all right for me to say that you cannot. And you were right in that I was going down the line in which I wanted you to define what the due process cutoff line is. I would have said that if it's 100 people the defendant intended to kill, then it's an absurd and arbitrary line to choose and say it's OK to allow due process at 99, but OK to suspend it entirely at 100. And you didn't want to go there, and that's cool. You can proceed from rage in this case and say, I hate KSM and want him to die, I want him to suffer to the maximum degree possible, and I do not want him to enjoy any of the same legal rights that non-criminals, or certain criminals who crimes are lesser in my view, enjoy. That's fine for your vision of what you think the world should be.

In the real world, though, proceeding from a position of rage, in which justice is defined as maximum vengeance rather than careful due process, does not serve us well as people living in a country built on the principles of freedom from tyranny and equal justice for all. Those principles need to be protected even at the cost of extending such due process and justice to those we would regard as the meanest, vilest, most evil people imaginable. That's what makes our system great. Absent that, we're no better than the Soviet regime and their sham trials and executions of dissidents. No better at all. Actually, absent that, we're the same.

So feel free to keep believing what you believe. That's absolutely your right, and none of us can begrudge you that right. But at the same time, please don't expect your position to be taken seriously in a serious debate about constitutional principles such as this, either, because your rights do not extend to forcing us to take that position seriously. Because the principles you seek to reject, and perhaps even overturn, are the very principles that make America great in the first place.

[chasfh]

Originally Posted by Mark The Shark

He's probably more akin to a pirate or saboteur -- who have also been traditionally tried by the military.

Oh OK, so he's not being tried on charges related to espionage. This is just an attempt to provide justification to the idea of trying a civilian in a military court for a civilian crime.

Man, I hope this doesn't work. It shouldn't. I'm not confident it won't work, but I'm keeping my fingers crossed.

[Blue Square Thing]

Originally Posted by Mark The Shark

He's being treated like a spy, not a soldier. He is facing the same military tribunals that we set up for Nazi saboteurs who were captured in the US.

Originally Posted by Mark The Shark

He's probably more akin to a pirate or saboteur -- who have also been traditionally tried by the military.

I think you'll find that the decision to do so went to the supreme court and they ruled that it was legal to do so only because of the declaration of war which had occurred before they committed the offense for which they were tried.

[Blue Square Thing]

Originally Posted by MrDeeds

I don't have the time, but I could compile quote after quote from people in the government who are promising to lock up KSM and others if they are somehow acquitted. What does that say to the rest of the world? The USA is evil! It's why I don't understand why people are so up in arms about this decision. The whole thing is a sham.

It certainly sends the message that it's perfectly OK to ignore the due process of law if it suits you.

[Blue Square Thing]

Originally Posted by Who is the Drizzle?

Yes.

Maybe if we weren't in a de facto war I'd feel different about ksm.

My understanding is that the supreme court has made it very clear that an actual declaration of war - a legal one - is the requirement.

[djhutch]

Originally Posted by pfife

I think its hilarious that Pakistan can try terrorists in their court system, but the US can't handle it.

I think its hilarious that anybody would think Pakistan's court system is one we should hold up as a model.

[Blue Square Thing]

Originally Posted by djhutch

I think its hilarious that anybody would think Pakistan's court system is one we should hold up as a model.

If this happens you may as well replace Pakistan's with America's.