Monday, March 08, 2010

KSM Via Video?

When last I opined on the looming KSM trial, I ventured the guess that the Obama Administration would give up on trying Khalid Shaikh Mohammed et al in any civilian court, given that every such court would involve at least SOME security risk for the courthouse and the city in which it is located. And although the Administration says no decision has been made about where to hold the trial, a military tribunal is looking increasingly likely. Herewith, a few observations:

1) From a purely political angle, perhaps the best course for the Obama Administration would be to hold a trial in a reliably Republican state, Texas or Utah, say. There will be demagoguing about holding the trial anywhere, including opposition from state and local officials, but the Administration can minimize the political price it pays by selecting a site in which the locals are already overwhelmingly going to vote for Republicans.

2) There is some question about how one legally justifies selecting Dallas or Salt Lake City as the appropriate venue for the KSM trial, given the "district" requirement of the 6th Amendment, but if a military trial on Gitmo would legal, it's hard to see why a civilian trial in Dallas or Salt Lake is not--unless one were to say that once the Administration invokes the civilian criminal process, all of the usual safeguards kick in.

3) In response to my earlier post, one reader suggested a civilian trial on a military base. I suspect that proposal would also succumb to the NIMBY objection, even if there were only a miniscule security risk. In any event, Congress may tie the President's hands by stripping the federal district courts of jurisdiction over a category of cases that includes KSM. Would Pres. Obama sign such a bill? If not, would Congress override his veto? Politically, here, as on other civil liberties issues, unfortunately there's not much angle for congressional Dems in taking a stand.

4) A nice compromise would be a trial by a civilian court at Gitmo or somewhere else outside of any Congressional district, but this can't be done because of the impossibility of empaneling a jury. Moreover, Congress would have to create a special district court for Gitmo, which it it is highly unlikely to do.

5) All of this leads me to think that the best solution would be yet another compromise: Try KSM and his alleged accomplices in the SDNY in Manhattan, but leave them on Gitmo or some other secure location, with a live 2-way audio-video feed. There is currently no provision for such a trial in absentia (as far as I am aware), and it would probably violate the 6th Amendment Confrontation Clause, at least absent KSM's consent. But if KSM has no right to be tried before a civilian court in the first place, then perhaps consent would be unnecessary.

6) What I like most about the audio-video feed idea is that it calls the bluff of those people who simply don't believe in civilian trials for terrorism suspects, but are using the question of how to provide security for the courthouse pretextually. There are, to be sure, legitimate reasons to worry about the use of civilian courts in such cases, but these have not stood as an obstacle to past terrorism trials in civilian courts (even during the GW Bush years), and presumably AG Holder has already determined that such obstacles are not insuperable in the KSM case.

7) I suppose that someone could object that even a KSM trial w/o the physical presence of KSM would create security problems (again, apart from the security issues inherent in airing matters of national security in open court). But that is an objection to just about any civilian terrorism trial.

8) An emerging rallying cry for the civil libertarian position says that civilian trials for accused terrorists, in addition to being routine, will result in swifter and surer penalties. (See this ACLU ad for an example.) I'm skeptical of the likely efficacy of this approach. The appeal of the military commission approach may be more to the limbic system than to the neocortex.


Prup (aka Jim Benton) said...

Michael: I am saddened by your comments. Democrats have been surrendering to the 'limbic systems' of the New Republicans since they withdrew the HCR provision for paying doctors for end-of-life counseling because of the 'death panel' myth. Isn't it about time that progressives, moderates, and even sane Conservatives stop trying to appease the unsarisfiable limbic systems of the New Irrationalists.

Why doesn't someone simply stand up and yell "This is simply utter dreck and we aren't giving in." The votes it would, supposedly, lose weren't going Democratic -- or even to the few sane Republicans left -- and just the act of standing up to nonsense might do something towards waking up our (somewhat disheartened) base.

People forget that the Islamic terrorists who have attacked America are foreigners with few roots in the American Islamic community. But one who had at least some connection to it was Sheik Omar Abdel Rahman, the mastermind of the first WTC bombing in 1993, who preached at several mosques in Brooklyn.

There was fear that his congregation would cause trouble, perhaps initiate terroristic attacks during his trial. Yet it proceded to a successful conclusion without incident in a civilian court.

Michael C. Dorf said...

Jim, just so we're clear about the source of your sadness: I'm not ARGUING that Obama and the congressional Dems should abandon civilian trials. I'm PREDICTING that they will. I'd be very pleased to be proven wrong. I've got nothing against people standing up and yelling. I'm just not a yeller myself.

Sam Rickless said...

I really don't understand the kerfuffle over this. It's not as if we haven't had terrorism trials in civilian courts before. Sure, they were domestic terrorists (McVeigh, the Weathermen, for instance). There are security problems, but they are not insurmountable.

I find two-way video feed ethically unacceptable, even if it is legal. It's wrong because the confrontation clause isn't just some arcane legal requirement. It's in the constitution because it is fundamentally morally wrong to be sent to jail (or executed) as a result of accusations that aren't made in one's presence. It is much easier to lie via video feed than it is to lie in the face of someone who happens to be sitting ten feet away from you.

The United States stands not merely for the rule of law. It also stands for justice, period. Trying KSM in any venue other than a civilian court, under the rules of a regular criminal trial, is wrong. Moreover, it sends the wrong message to the rest of the world, because it tells folks abroad that the requirements we place on our own criminal prosecutors may be ignored when it is inconvenient for us to follow them.

Paul Scott said...

If the twin key issues are a combination of safety on one hand, and defendant rights protections on the other, why not use military tribunals at Gitmo but with either 1. international observers and/or 2. public broadcast of the trial?

I assume that if the government is willing to try KSM in a public, civil court that whatever evidence they need to produce can be done without risk to national security and without fear (or significant fear) of having it rejected because of the manner in which it was obtained.

Even with those two hurdles met, the govt. may not wish a broadcast because of legitimate publicity (meaning giving KSM a platform) concerns. In that case, international observers plus press free access (but no video), should suffice. Again, I have to assume they were not intending on a closed civil trial, as such a trial would be as politically pointless as a military one - or nearly so anyway.

Just some thoughts on a reasonable compromise. Personally, I'd hold it in NY as originally planned.

Unknown said...

One thing I find saddening about this whole debate is the extent to which Americans have lost sight of the role juries can play in empowering the People. The debate on both sides seems to assume that a jury trial is primarily for the benefit of the accused. Might I propose that now is a good occasion to review Chapter 5 of Akhil Amar's instant classic, 'The Bill of Rights', in which he explains how the Sixth Amendment as originally conceived was as much a part of the structure of our government, as much for the benefit of the public (to enable our participation in the judiciary) as for the individual defendant. Prof. Amar even goes so far as to suggest that the jury trial may not have been intended to be waivable by the defendant. Not that I'm saying we should simply dial back the clock to a founding-era understanding of the trial by jury. But I do believe it would be heartening if in our participatory republic people evinced a bit more enthusiasm for the very institutions that are designed to facilitate citizen participation.

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