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November 19, 2009


Holder and Obama's position on trials for prisoners bears only a passing resemblance to any principle of justice. Their proposal is for a multi-tier system with real trials for some, sham military trials for others, and indefinite detention for the rest.

If that's not enough, the Justice Department has floated the idea of "post-acquittal detention" to ensure that nobody is ever released.

Summary executions would be equally fair and just.

elm: while I have serious issues with the Holder/Obama plan, the amazing thing is that for so many leading conservative voices, it represents some radical embrace of individual rights.

I want Obama to go further, but the right is shrieking at the tiny steps already taken.

Eric: That's what the right does. It screams its head off about the danger of holding Khalid Sheik Mohammed in a maximum-security prison. It screams its head off about the danger of talking with Iran. Screams its head off about Obama's back-to-school speech. Screams its head off about Death Panels.

If Obama or Holder proposed trials for all of those current prisoners then I'd support them. I can't possibly support their current plan.

I also don't see any evidence that Obama and Holder have any intent of taking further steps. I lack the transcripts now, but when I heard part of Holder's testimony yesterday it made me nauseous. In essence, he defended this plan (real trials for a couple of people) only because he was certain to get a conviction. He did all he could to ensure the Senators present that there was no risk of any outcome but the death of Khalid Sheik Mohamed.

@Eric: I do agree with the rest of your post. A functioning justice system takes the wind out of the radicals' sails like nothing else. Similarly, corruption -- especially corruption in the justice system -- breeds extremism like nothing else.

My objection is that the Obama/Holder plan is no significant improvement. Giving fair trials to every current prisoner would make us safer. Half-measures won't.

Khalid Sheikh Mohammad was kidnapped from Pakistan sometime in late 2002/early 2003. His children have been tortured by allies of the US, if not by US agency. He has never been held legally by the US, and during the years of his illegal detention, he has been tortured.

No court in the US can justly convict KSM of the crimes for which he has been tortured to force him to give evidence. (Like all of the other prisoners held illegally and tortured by the US, he is undoubtedly due compensation for this criminal mistreatment: but like all the others, neither he nor his heirs will get that.)

It's true that a judge acknowledging this publicly and directing the jury to acquit, would clear at least that judge, and that courtroom, of being implicated in the rot of the US judicial system.

But I suspect that the DoJ's reaction to an attempt to begin to sweep clear the judicial system would be to put the prisoner back in illegal detention until a court could be found that would convict.

According to the discussion on Pandagon on this topic, no judge and no juror in New York State would dare do anything but convict KSM, regardless of what evidence is brought that the US never held him legally amd criminally mistreated him while he was in illegal detention.

He did all he could to ensure the Senators present that there was no risk of any outcome but the death of Khalid Sheik Mohamed.

I heard that, too. And it does grate a bit. On the other hand, I should hope that when the DOJ puts a man on trial, it actually believes him guilty. "We're not sure he did it, so we're pressing charges and letting a jury decide" hardly seems the right spirit either.

On the incessant right-wing motif that KSM was "captured on the battlefield", I must repeat something I've said before: I remember KSM's mugshot. A sleepy and dishevelled slob in a nightshirt is almost the exact opposite of a ferocious soldier in uniform captured on the field of battle.


Khalid Sheikh Mohammad was kidnapped from Pakistan sometime in late 2002/early 2003

Is it kidnapping if it's an act of the state in question? The US had Pakistan's full and active coopration in the action.

My objection is that the Obama/Holder plan is no significant improvement. Giving fair trials to every current prisoner would make us safer. Half-measures won't.

This is possibly true. After all, they're not going all "Amnesty International" with the program. Which is where the real progress is made.

Tony: The counterpoint there is that they're still committed to denying civilian trials to most of their prisoners.

They have the a combination of evidence, outrage, notoriety, a tainted jury pool, and Mohamed's (alleged) desire to plead guilty which makes them certain they'll convict and kill him.

They remain committed to cherry-picking venues (civilian court, military tribunals, secret tribunals), "post-acquittal detention", and the right to hold some prisoners indefinitely without trial.

The principle they should follow is simple: Fair civil trials for all accused with counsel and evidence and release for those exonerated or who have completed their sentences?

What justice is there in a system that can never acquit?


I agree with you that "fair civil trials for all accused" is the right way to go. I do not want "a system that can never acquit".

Of course, the idea that KSM deserves to be executed with a minimum of legal fuss is the right-wing (nowadays, that means GOP) position. The idea that if the government is holding somebody he MUST be guilty is the small-government (again, GOP) position. The idea that a Muslim criminal is ipso facto an "enemy combatant" is the Christianist (i.e. GOP) position. Even if Holder and Obama want "a system that can never acquit", their position is still not as repulsive as the GOP position.

Holder and Obama are willing to countenance "post-acquittal detention", you note. Well, frankly, so am I -- under certain circumstances. A man who stands up in court and declares himself to be an enemy combatant, dedicated to attacking Americans, is different from a man who merely claims to be innocent of the criminal charges against him. If KSM (or any other "detainee") wants both his freedom and his status as an enemy combatant simultaneously then I'd keep him locked up as a lunatic, if for no other reason.

But, and I have made this point before also, I am not willing to take my own government's mere word that "this guy over here is a terrorist". Let's hear the evidence. Let's hear the rebuttal. Let us, in other words, hold a trial.


Unfortunately, due to the fact that the Saudi Arabian government spends lavishly to spread Wahhabism to all corners of the globe through the state-funded proliferation of literature, teachers, madrasas and mosques, the Wahhabist presence is so ubiquitous and domineering that young Muslims looking to learn more about their religion frequently stumble upon this pernicious brand for lack of visible alternatives.

This is, I think, a very important point, though it may seem small.

I own two Qur'ans with translations and commentary. One is the Yusaf Ali translation, from a Saudi printing in the '90s. The other is the '03 edition of the Muhammad Asad translation that CAIR was giving out copies of three years back. The difference is breathtaking. The commentaries in the Asad translation follow fairly closely with the text. The commentaries in the Ali often go to lengths to explain how a straightforward reading of the the text would be misguided. In fairness, the Ali translation is generally held to be less egregious than the al-Hilali/Khan translation, which is the version the Kingdom currently pushes. But still. That's an awfully low bar. *cringe*

The House of Saud casts a depressingly large shadow across Western mosques just by their willingness to expend resources to get them to push the teachings of their sect. It's always so depressing to hear more moderate Islamic organizations get tarred, feathered, and dismissed as treacherous jihadi fronts in this context. It does wonders for cultivating Islamist persecution complexes though.

I actually agree with your point, NV. I remember in the months following 9/11 why Saudi Arabia was getting such a free pass for going to such lengths to promote an ideology that played such a role in the mass murders.

Until I remembered the oil*.

*Incidentally, this is a big part of the reason I've held, for a while now, that our country's greatest challenge is transforming the way we use energy.

Oh, and FTR, Eric's just plain right in this post.

And trying KSM in civilian courts is mere sanity.

"At its root, America's best defense is being America again."

But that's not their America.

@Tony P.: Even if Holder and Obama want "a system that can never acquit", their position is still not as repulsive as the GOP position.

I don't disagree with that, but their not-as-repulsive position is still vile, unjust, and indefensible.

I'm not referring to Mohamed specifically but to the multi-tier system they propose.

For the sake of clarity, here it is (source:

  • Five prisoners will get real civilian trials in New York. If I understand correctly, they're big name prisoners and Holder thinks there's 0% chance of acquittal.

  • Forty are split between real trials in Federal Court and fake trials by Military Tribunal. The article doesn't say what the breakdown will be. The Military Tribunal trials will allow crappy evidence: hearsay and confessions obtained by torture.

  • Seventy-five more will be held indefinitely without trial or charges. The evidence in these must be very weak if it won't stand up to even a Military Tribunal.

  • They'll release ninety others, though, of course not in the U.S.

This arrangement allows the President and Attorney to select the venue to match the evidence at hand. That's a technique to guarantee conviction (by default for those poor suckers in group 3).

On "post-acquittal detention": Do you think that "A man who stands up in court and declares himself to be an enemy combatant" is liable to get a not-guilty verdict?

Finally, if the government can hold you prisoner after the (hand-picked) courts have acquitted you, what purpose does the trial serve?

The Obama/Holder position may be less-bad than that of the Republicans, but it's still very bad. This makes me ashamed to have supported Obama in the last election.

I don't know what set it off...but suddenly the penny dropped.
Not many likely realize that what passes for Evangelical Christianity these days is a CIA-modified program that was used to subvert natives in Central and South America via Jungle Air's distribution of Bibles translated into the native tongue.
I've known for years that Taleban referred to proslytization in the area where the CIA spent money sucking the U.S.S.R. into a guerrilla war of attrition that they could never win.
We used to hear the stories about the Moonies and Flower People and Cult Brainwashing with the Saturday funnies.
Even then the idea that Israel was a British-started custodian of polyglot prisoners driven from their farms/homes in Palestine didn't really alert one : all there was were stories about how Israel 'made the desert bloom.'
Today one is instantly a 'Jew-hater' for noting what Iran says constantly : there is no justice in inflicting further holocaust upon Palestinians. Two wrongs don't make a right.
And now - for years - the American government has been at pains to show all the world that its laws are worth Dick...as in Cheney.
Did you realize that there were American soldiers in Afghanistan trying to 'sell' their warped Xianity ? That Israeli army rabbis styled murder in Gaza in terms of religious war ?
Change You Can Believe In.
Oh, I believe it.
The Fourth Reich has properly arrived.

Yeah, I don't think there's anything wrong with the executive branch believing, and saying, that they expect a trial to result in a conviction. They're literally the prosecutor. They're supposed to believe that they're going to win.

If they were trying to manipulate the outcome, that would be one thing. But to just state that you expect that the evidence will prove conclusive isn't really bad.

That's reassuring. We won't worry about the military prosecutors who resigned in disgust at the Kangaroo Courts, then.

Eric: Is it kidnapping if it's an act of the state in question?

Was Khalid Sheikh Mohammed then brought before a court in Pakistan, and evidence produced to justify extraditing him to the US for trial?

No? Then yes, he was kidnapped.

The government is not going to be able to hold people without trial indefinitely. Prisoners have habeas cases, which are working their way through the system now. It's true that for a class of prisoner, even victory in a habeas case hasn't meant immediate freedom, but the government's attempt to apply this policy to Yemenis, Saudis, or Afghans will fail.

Going back to elm at 10:23, I would guess that a substantial portion of those in group 2 -- the 40 to be 'prosecuted' somewhere -- are going to have plea deals. Hicks deals, mostly, although maybe some cooperation in other prosecutions.

Now that they seem to have dropped the unanimity requirement -- all agencies must agree before the task force will recommend release -- maybe the numbers for release will go up as well. Especially among Yemenis.

No? Then yes, he was kidnapped.

Okay, but so was Rudolph Eichmann and so was the Lindbergh baby. "Kidnapped" can be as elastic as any other word.

Far be it from me to coin a Bushian term like "extra-territorially arrested" for the capture of KSM. I am perfectly willing to call it "kidnapped".

But Jes: why do you think the government of Pakistan facilitated this kidnapping? He's their citizen. They could have arrested his captors for kidnapping, let alone given KSM an extradition hearing.

Also, suppose that KSM is acquitted and the US government chooses to release him -- i.e. send him back to Pakistan. Would Pakistan welcome him back as an honored citizen? Or as a hero? Or would they hang him?


One last time, in response to 10:23. The third category will, theoretically, end up consisting of people for whom there is evidence sufficient to get a ruling that the man was a member of the enemy force and continues to present a realistic risk of returning to the enemy force. But without sufficient evidence to charge with a crime. One has to keep in mind that these are very different things.

The guy who was a kitchen assistant to a Taliban regiment lost his habeas case, on a ruling that kitchen assistants are nonetheless members of the enemy force. He'd never be prosecuted because even under the MCA, making hummus is not a war crime.

One would hope, of course, that some grown-ups somewhere would realize that holding kitchen assistants is a poor use of the power and prestige of the United States.

Tony: But Jes: why do you think the government of Pakistan facilitated this kidnapping?

They also facilitated the kidnapping of Abdul Salam Zaeef, Moazzam Begg, Mohammed Mizouz... I'm not seeing why you would think it unexpected that the government of Pakistan would facilitate a US kidnapping.

For much the same reason as the government of Bosnia facilitated the kidnapping of Bensayah Belkacem, Boudella el Hajj, Lakhdar Boumediene,
Sabir Mahfouz Lahmar, Mustafa Ait Idr, Mohammad Nechle. Because when the biggest, baddest, most powerful nation on Earth tells you "We want that guy" it doesn't matter much that it's illegal.

For crying out loud: my government passed an Act of Parliament making it legal for the US to take prisoners from the UK with evidence of identity only, after one too many British judges had been stiffnecked enough to tell the CIA that the law of the land required they show evidence that the person accused could be charged with a crime, not just demand the UK hand them over "because we say so".

Worldwide, governments know it's better to do what the US wants than stand up for international law and human rights when that would obstruct what the US wants.

The other fear expressed by leading conservative voices is that the trial will somehow redound to the benefit of KSM and his cause by giving him a platform from which to proselytize

How did that work out for the Chicago Eight/Seven?

The House of Saud casts a depressingly large shadow across Western mosques just by their willingness to expend resources to get them to push the teachings of their sect.
That was -- and continues to be -- one hell of a Devil's bargain. The Wahhabi Ikhwan got much more out of their alliance with Abdul Aziz al-Saud in the Arabian civil war than the Christian right got out of their alliance with the Republican Party.

Patrick nailed the important point: prosecutors routinely say that they are confident of a conviction in a criminal trial. That's what they are supposed to do -- if they weren't confident, they wouldn't be going to trial. So faulting Holder for his comments would seem to reflect a lack of familiarity with the criminal justice system.

That said, if KSM is not convicted, but then is held anyway, there will be grounds for complaint. But until and unless that happens, elm and others should applaud this first step towards doing the right and legal thing. It isn't the desirable end of the journey, but it is certainly a step in the right direction.

Why does everyone keep assuming KSM is going to plead not guilty?

To address Patrick and wj's point that the prosecutor ought to have confidence in his case.

My complaint isn't about the trial of Khalid Sheik Mohamed as such.

My complaint is that Holder shows no intent of allowing a fair trial to many other prisoners.

Quoth Holder: "I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law"

For some prisoners, he's selected the venue of no trial at all.

For some, he's selected military tribunals more likely to favor the prosecution.

It is not praiseworthy that he chooses to only try cases he can win while denying fair trials to others.

When a normal prosecutor has a weak case, he must drop charges or make a deal. When Eric Holder has a weak case, he can switch venues or deny the accused any trial. Those are very different forms of confidence.

Actually, I entertain at least the possibility that Holder is going with his strongest cases first. And, assuming that he wins those, may try to use that momentum to bring the weaker ones in the same venue (regardless of what he currently says are his intentions).

That may, of course, be incorrect. But it seems like it is at least possible. Certainly he wouldn't want to bring his weakest cases first.

The official reasoning behind using military tribunals for some and civilian courts for others is that the former attacked military targets (like the USS Cole) while the latter targeted civilians. I have serious doubts about the honesty of that reasoning (and think it has to do mainly with the amount of untainted evidence available) but it makes sense at least outwardly. The only reason I see against using NY as location is that it could be difficult to get a neutral jury.
On the other hand, if there was an acquittal and then the government would say "too bad" and spirit the acquitted away to some indefinite detention facilty, then it would be indeed Nazi-do (like the Gestapo arresting a person in the civilian courtroom directly after the acquittal with the words "Kommt nach Dachau", i.e. will be brought directly into a KZ).
elm, as for regretting having supported Obama: what would have been the alternative? Unfortunately, as far as justice is concerned, there was no less sucking viable one. One still has to wait for a Democratic Vlad III inviting all the RW nuts for dinner and then setting fire to the house.
What about converting an old very deep mine into a special prison, so the US can tell that it buries convicted terrorists a mile underground? Should also make any helicopter rescues impractical. In case of attempted prison breaks the lower levels are to be simply flooded ;-)

We'll see how the Commissions actually pan out. Under prior commission regimes the government definitely did not get what it wanted on a number of important issues. And the rules will be much less favorable to the government this time.

I'm not personally so disappointed at the failure to abandon commissions, although I think it's a mistake. Leaving decisions about dangerousness, though, in the hands of people who (a) are afraid some granny might crash a plane with a tube of toothpaste and (b) didn't vote for the President and would be happy to see his policy fail, is just incomprehensible to me. As noted above, maybe dropping the unanimity requirement will help.

I've long had a simple minimum qualifications test for whether someone should be allowed to work in the defense/intelligence establishment any capacity requiring an exercise of judgment: did you, at any time after the later of (i) turning 25 or (ii) 1974, believe that the Soviet Union was going to massively attack the West, either in Europe or North America? If the answer is yes, I'd ban you. I'm prepared to update this to include believers in the more lurid tales from GTMO jailhouse snitches.

Hartmut: I agree that Obama was -- even with hindsight -- the lesser evil in the 2008 election. I wouldn't change my support of Obama in the general election. It's not even clear that there was a better electable candidate in the primary.

Yet on this issue and on domestic social issues, Obama seems perfectly willing to take either a center-right or center-willing-to-give-away-everything-for-the-sake-of-one-Republican-vote position.

If the Democratic Party wants to occupy the center-right, then that's fine but I don't owe them my support. The alternative is to either pull the Democrats to the left or to form a viable center-left Liberal party (and push the Republicans to the fringe they seem most interested in).

I recognize that both of these are large projects and neither is especially likely to succeed. But the alternative is to be eternally expected to hold my nose and support whatever candidate the Democrats put forth.

"as for regretting having supported Obama: what would have been the alternative?"

Hillary-Bill: experience, toughness, shrewdness, competence.

Instead the proggie-bloggie wing of the 'party' opted for Blah Blah O'Hamlet: 'Tis it nobler in mind to have a public option or not to have a public option? Wait, I think I got it -- hummm, or maybe not, don't rush me... there's a consensus somewhere around that silver lining... What ho, Horatio, is that ever-present crashing noise the sound of the economy tumbling on our heads?... Thus does 10.2 percent unemployment make cowards of us all, and the native hue of our former sycophants but the slings and arrows of outrageous misfortune!!' [exit O'Hamlet, to the sound of hisses from the disenchanted]

Hillary-Bill: experience, toughness, shrewdness, competence.

So as an alternative to a tepid, center-right Clintoneasque Obama, you suggest... the Clintons (and it's you who's suggesting them as a package deal, so don't accuse me of being dismissive of her)?

Honestly, did you even see any of the comment you responded to besides the words "alternative" and "Obama"?

elm, no disagreement with your November 21, 2009 at 01:17 PM post.

Then yes, he was kidnapped.

As "kidnapped" normally has the element of ransom in it, with some limited exceptions, I'd tend to use the word "abducted". But that's just my personal preference, maybe.

Add a 'forecefully' before the 'abducted' and we could talk.

Merriam-Webster has abduct as:

1 : to seize and take away (as a person) by force

But redundancy is probably better than a less conventional word usage, I think.

Hartmut: Add a 'forecefully' before the 'abducted' and we could talk.

Abducted just means to take away by force. Kidnapped, on the other hand, explicitly describes a crime - the criminal abduction of a person. Because the usual reason for criminal abduction is ransom, kidnapping is associated with ransom: but the definition does not entail ransom. In fact, for most prisoners taken in Afghanistan, they were ransomed - to the Americans, who were offering a cash bounty to the kidnappers. For the six kidnap victims in Bosnia, the ransom was perhaps less direct: the US is the second-largest provider of international aid to Bosnia, a sufficient motivator for the Bosnian government to permit the CIA to kidnap six people declared innocent by the Bosnian courts. Perhaps the complicity of Pakistan with US kidnapping offenses was less direct, less money-orientated: but no courts were ever involved.

I see no reason to smooth over American sensibilities by pretending what their military has been doing at the orders of their government is anything other but a series of criminal offenses for which the usual term is kidnapping.

Although abduction is literally the same as German 'Entführung'*, the latter does not necessarily imply force or the unwillingness of the abductee (Mozart's Abduction from the Serail anyone?). The appropriate term, if its meaning had not changed so much, would be 'rape' (originally no sexual connotation).
First raped (abducted), then (often) ravished (raped, sodomized), turned to (nervous and sometimes bodily )wrecks.

*don't know about English law terms but German has a long list of words specifying different types of unlawful movement of people by others (Entführung, Verschleppung, Menschenraub, Geiselnahme, Freiheitsberaubung...) with further specifying adjectives.

Perhaps they won't plead guilty, or argue about the definition of kidnapping, but will instead favor us with their views on American foreign policy. I'm sure a New York jury will find this fascinating.

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