No Trial for KSM?

[willhaven]

How many of those 289 were members of groups subject to the AUMF? That is the only relevant metric here, not some biker gang member who put a pipe bomb in a rival biker gang's clubhouse.

What about the AUMF makes KSM any different from the others captured outside of the US, brought here and convicted here? The AUMF was just a constitutional requirement to go globetrotting looking for terrorists.

And, for the record, many of those cases I linked to are Al Qaeda and most of them aren't 9/11(AUMF) related. If anything, the US has less authority to prosecute those cases in US courts than anything that falls under the AUMF which KSM obviously does. With a 90%+ conviction rate, I don't think we have much to worry about.

 

[WildCat]

What about the AUMF makes KSM any different from the others captured outside of the US, brought here and convicted here?

Because the military doesn't get search warrants before they raid an enemy canp in the middle of the night. Nor do they get court permission to eavesdrop on enemy communications. The military is not an arm of civilian law enforcement.

The AUMF was just a constitutional requirement to go globetrotting looking for terrorists.

Glad to se you admit this is an actual war, and not a figurative one like the War on Drugs or the War on Poverty.

And, for the record, many of those cases I linked to are Al Qaeda and most of them aren't 9/11(AUMF) related.

And the ones you're comparing them to are 9/11 related.

If anything, the US has less authority to prosecute those cases in US courts than anything that falls under the AUMF which KSM obviously does. With a 90%+ conviction rate, I don't think we have much to worry about.

How can there be "less authority"? Either there's authority or there isn't. Clearly, the courts have determined there was authority.

 

[willhaven]

Because the military doesn't get search warrants before they raid an enemy canp in the middle of the night. Nor do they get court permission to eavesdrop on enemy communications. The military is not an arm of civilian law enforcement.

KSM was captured by the ISI and CIA (intelligence agencies). I'm not sure the military had much (if anything) to do with it.

And the ones you're comparing them to are 9/11 related.

Which isn't really relevant. Even if it were relevant, Zacarias Moussaoui was convicted in a US civilian court for charges relating to 9/11. There is precedent for trying terrorists in US civilian courts. Even those related directly to 9/11.

How can there be "less authority"? Either there's authority or there isn't. Clearly, the courts have determined there was authority.

It seemed like you were insinuating that the AUMF after 9/11 gave some special authority relating to trying terrorists in court. It doesn't have anything to do with that. How do we know? Dozens of terrorists have been tried and convicted before and after 9/11 which don't fall under that AUMF. Even some terrorists who did fall under the AUMF have been tried and convicted in US civilian courts.

If the AUMF did grant some special authority, apparently it isn't really relevant with regard to trying terrorists (whatever their crimes or group affiliation) in US civilian courts.

So you're right in saying "the courts have determined there was authority." I agree with that and it's an argument for using civilian courts. However, you're wrong in saying "the only relevant metric" is whether the terrorists fall under AUMF. Given the case history, it seems like the AUMF is an irrelevant metric as to whether terrorists can or should be tried in civilian courts.

 

[WildCat]

KSM was captured by the ISI and CIA (intelligence agencies). I'm not sure the military had much (if anything) to do with it.

Did the ISI and CIA get search warrants? Court approved wiretaps? Read him his Miranda rights? Etc.

Which isn't really relevant. Even if it were relevant, Zacarias Moussaoui was convicted in a US civilian court for charges relating to 9/11. There is precedent for trying terrorists in US civilian courts. Even those related directly to 9/11.

It seemed like you were insinuating that the AUMF after 9/11 gave some special authority relating to trying terrorists in court. It doesn't have anything to do with that. How do we know? Dozens of terrorists have been tried and convicted before and after 9/11 which don't fall under that AUMF. Even some terrorists who did fall under the AUMF have been tried and convicted in US civilian courts.

I've said a select few (such as Moussoui) probably could be tried in civilian courts. Not many though, as even Holder is discovering.

If the AUMF did grant some special authority, apparently it isn't really relevant with regard to trying terrorists (whatever their crimes or group affiliation) in US civilian courts.

Uh, what "special authority" are you talking about, besides the authority to shoot them on sight if need be?

So you're right in saying "the courts have determined there was authority." I agree with that and it's an argument for using civilian courts. However, you're wrong in saying "the only relevant metric" is whether the terrorists fall under AUMF. Given the case history, it seems like the AUMF is an irrelevant metric as to whether terrorists can or should be tried in civilian courts.

The authority I was speaking of, which I thought you were referring to, was to try foreigners for crimes committed outside the US but against US interests.

As I've always said, some may be tried in civilian courts. But it's foolish to say they all must be tried in civilian courts. Civilian courts aren't generally used for war crimes, certainly not in the US. The framework in which to do that simply isn't applicable in most cases. In fact, of the hundreds of detainees even Holder acknowledged only a dozen or so could be tried in civilian courts, and he's already having serious doubts about his most high-profile candidate, KSM.

 

[a_unique_person]

Sure, if your goal is to have a judge ordering the suspects free because the military didn't use search warrants, give Miranda rights, etc.

He confessed to anything and everything to avoid torture. None of that evidence will stand up in any court that pretends to seek justice.

 

[willhaven]

Did the ISI and CIA get search warrants? Court approved wiretaps? Read him his Miranda rights? Etc.

I have no idea. They can still try him in civilian court if they feel they have the evidence and the procedure correct. When he was captured he had a hard drive with a lot of damning evidence on it. If they can reliably tie him to that information, any information or confessions thrown out due to Miranda or interrogations would be irrelevant if the apprehension was legal to begin with.

There are chains of evidence that don't require Miranda warnings. Even if he made statements without Miranda, it's possible that they could be used to convict him. Even if he was tortured, he could be Mirandized today and confess and the confession would be admissible. Last I heard he planned to plead guilty.

There's a whole section about Miranda in here.
http://www.humanrightsfirst.org/pdf/090723-LS-in-pursuit-justice-09-update.pdf

I've said a select few (such as Moussoui) probably could be tried in civilian courts. Not many though, as even Holder is discovering.

From my perspective, it seems as though Holder and the administration are caving to political pressure, not caving to legal realities. I could be wrong though. I guess we'll see what their decision is and the rationale behind it soon.

Uh, what "special authority" are you talking about, besides the authority to shoot them on sight if need be?

My position is that AUMF is essentially irrelevant. You were the one who brought it up in the context of KSM as if it meant something.

The authority I was speaking of, which I thought you were referring to, was to try foreigners for crimes committed outside the US but against US interests.

Which we both agree they can do. The authority I was referring to was the post-9/11 AUMF you brought up which would conceivably have more authority since congress explicitly stated that the president can capture those involved with 9/11. It could be argued that those cases would have more authority than non post-9/11 AUMF cases. Either way it doesn't seem to matter since non-AUMF cases have been successfully prosecuted in US civilian courts on dozens (if not hundreds) of occasions.

As I've always said, some may be tried in civilian courts. But it's foolish to say they all must be tried in civilian courts. Civilian courts aren't generally used for war crimes, certainly not in the US. The framework in which to do that simply isn't applicable in most cases.

It's foolish to say they must all be tried in civilian courts, but it would be foolish not to start there. It's far more efficient than the tribunal system, it's less of a legal black hole than the tribunal system and has given out consistently harsher (or equally harsh) sentences than the tribunal system.

Tribunals should only be used when the civilian system would be insufficient. Tribunals are unreliable and have a short and disappointing track record.

http://www.americanprogress.org/issues/2010/01/criminal_courts_terrorists.html

 

[willhaven]

He confessed to anything and everything to avoid torture. None of that evidence will stand up in any court that pretends to seek justice.

Unless they have evidence that doesn't require Miranda or unless they later Mirandized him and he confessed.

 

[WildCat]

And this just in:

The first Guantanamo detainee to face a civilian trial has been acquitted of terrorism charges but convicted of conspiracy, the Associated Press reports. A federal jury found him guilty on only one of 280 counts.

Ahmed Khalfan Ghailani, 36, was charged in the 1998 bombings of U.S. embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania, which killed 224, including 12 Americans. Thousands were wounded.

Bold emphasis mine.

Let's see 1 divided by 280 equals... ~0.36%. A bit lower than the claimed 90% conviction rate.

Yeah, trying him in civilian court was a great idea.

 

[WildCat]

WaPo version:

Ghailani still could be sentenced to life in prison, and faces a minimum of 20 years, according to the Justice Department. But the verdict was a blow to administration officials who were quietly confident that Ghailani would be found guilty on all charges, despite the judge's ruling against the government on a key issue. Just last week, a senior administration official said a not guilty verdict would be a "disaster" for the administration's Guantanamo policy.

I think the civilian court idea is dead.

 

[JoeTheJuggler]

"The first trial of a foreign terror suspect from the Guantanamo detention facility may be deadlocked as a juror on Monday asked the judge if she could be dismissed, saying she felt "attacked" by the other 11 on the panel for being the lone holdout.

U.S. District Judge Lewis Kaplan declined to dismiss the juror and ordered the panel to return to deliberations and try to reach a unanimous verdict in the murder and conspiracy trial of alleged Al Qaeda collaborator Ahmed Khalfan Ghailani."

That sort of thing happens in many high profile criminal trials. So are you arguing that we should do away with trial by jury?

 

[willhaven]

Let's see 1 divided by 280 equals... ~0.36%. A bit lower than the claimed 90% conviction rate.

Are you drunk? He was convicted.

Add one case to the long list of convictions in civilian court.

 

[Brainster]

Yet another case of hope meets reality.

 

[Puppycow]

one count of conspiracy to damage or destroy U.S. property

That's it?

 

[willhaven]

His minimum sentence is still longer than 3/4 of the trials pushed through the tribunal system. His maximum sentence would match that of the longest tribunal sentence.

Most of the tribunal subjects are now free men.

 

[applecorped]

That sort of thing happens in many high profile criminal trials. So are you arguing that we should do away with trial by jury?

No civilian trials for Guantanamo detainees.

 

[willhaven]

Why do you want to give Guantanamo detainees lenient sentences?

 

[Meadmaker]

Why are people upset at this verdict? I've been looking through the press summaries, and I think the problem is that there wasn't much of that....what's the word....some sort of fancy legal term......uhhhh.......evidence.

I will confess to not following the details, only the post - trial headlines, but it seems to me that they didn't really have much on the guy, but they managed to get a 20 year minimum sentence with the possibility of life without parole. And this is seen as a failure of the system? I think things worked pretty well.

 

[willhaven]

This is the Guantanamo military commission track record so far.

http://en.wikipedia.org/wiki/Guantanamo_military_commission

- Out of 5 cases that have been tried, 2 (40%) had all charges dropped.
- Out of 5 cases that have been tried, 2 (40%) of cases have been sentenced, served their time and are now free men (5 month and 9 month sentences after detention).
- Out of 5 cases that have been tried, 1 (20%) of cases got a sentence of life without parole.

The next one coming down the pipe, Ibrahim al Qosi, has plead guilty. The military jury at Guantanamo's proposed sentence? 14 years. Less than the minimum sentence in this case. He will probably get credit for time served since 2001. So ~5yr sentence.

Face it, the tribunals suck compared to the civilian system. They suck and should only be used when absolutely necessary.

 

[WildCat]

Are you drunk? He was convicted.

Add one case to the long list of convictions in civilian court.

He was acquitted of all of the terrorism and murder charges. Bear in mind this case was prepared as a civilian case from the beginning, the bombings in question occurred in 1998.

 

[WildCat]

His minimum sentence is still longer than 3/4 of the trials pushed through the tribunal system. His maximum sentence would match that of the longest tribunal sentence.

Most of the tribunal subjects are now free men.

You're comparing sentences of people charged with providing material support to terrorist groups to the sentence of someone charged with the murder of 280 people. Apples to oranges.