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.