The title of the article is:
"The KSM Trial Will Be an Intelligence Bonanza for al Qaeda"
As excerpt:
*Prosecutors will be forced to reveal U.S. intelligence on KSM, the
methods and sources for acquiring its information, and his
relationships to fellow al Qaeda operatives. The information will
enable al Qaeda to drop plans and personnel whose cover is blown. It
will enable it to detect our means of intelligence-gathering, and to
push forward into areas we know nothing about.
*This is not hypothetical, as former federal prosecutor Andrew
McCarthy has explained. During the 1993 World Trade Center bombing
trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard
criminal trial rules required the government to turn over to the
defendants a list of 200 possible co-conspirators.
*In essence, this list was a sketch of American intelligence on al
Qaeda. According to Mr. McCarthy, who tried the case, it was delivered
to bin Laden in Sudan on a silver platter within days of its
production as a court exhibit.
*Bin Laden, who was on the list, could immediately see who was
compromised. He also could start figuring out how American
intelligence had learned its information and anticipate what our
future moves were likely to be.
*Even more harmful to our national security will be the effect a
civilian trial of KSM will have on the future conduct of intelligence
officers and military personnel. Will they have to read al Qaeda
terrorists their Miranda rights? Will they have to secure the "crime
scene" under battlefield conditions? Will they have to take statements
from nearby "witnesses"? Will they have to gather evidence and secure
its chain of custody for transport all the way back to New York? All
of this while intelligence officers and soldiers operate in a war
zone, trying to stay alive, and working to complete their mission and
get out without casualties.
His article raises several questions:
1. Does there exist any evidence that information from the 1993
bombing trial actually helped in any subsequent actions that were
harmful to the US?
2. Are there similar concerns about forcing the government to reveal
where it got its information that would be an argument against holding
organized crime trials in a civilian court?
3. Other countries like Spain, Britain and France have held terrorism
trials in civilian courts in recent years. How much harmful
information, harmful to those countries, was released in those trials?
4. The last quoted paragraph seems to conflate the problems of
conducting the wars in Iraq and Afghanistan with prosecuting saboteurs
who operated far from the battlefields, both in time and space. Is
that valid?
Even if some or even all of Mr. Yoo's argument were valid, it misses
the fact that al Queda draws its support from a general population
which is more or less likely to assist depending on how they perceive
the fairness of the U.S.
I think having a public criminal trial is a good move. Consider that
we do not want to *raise* these murderers to the level of military
combatants. A criminal trial may well expose to muslims around the
world how many innocents were killed with no military purpose.
As for them getting off, people seem to forget that if they have the
status of combatants --an undeserved gift-- they may be able to claim
they were just following orders whereas when charged as murderers, it
is no defense to say they were ordered to do so.
Generally military courts put people on trial who are under oath to
the service that is accusing them. I'm not aware of any Union Army
court trying Confederate soldiers.
What we usually do with imprisoned soldiers is to exchange them for
something. Who would we bargain with for these guys? Why would we want
to leave it up to a future president to "exchange" them?
If the individuals see themselves being treated better than they
deserve, they may come to feel they were brainwashed and seek to
assist us against terror, which might also balance any secrets
revealed.
The government will be forced by even a lame fool defense team to
either reveal things that should not be revealed or expose itself to
losing the case.
You can make a case that the previous trial of 'the blind sheik' led
to 9/11. No telling what this will do.
The intelligence released at that trial informed UBL that the US
government was getting close to him. That led him to move from the
Sudan to Afghanistan where he had the time to plan 9/11.
There is a huge problem. If you listened to Holder at the
Congressional hearings, he seemed to have no idea of the consequences
of what he is doing here. He seems to be operating on pure political
motivations rather than legal. So let me ask you one legal question.
In a civilian trial, the accused is assumed innocent until proved
guilty. This guy, KSM, who now is presumed innocent, has been
imprisoned for, what, six years, denied a lawyer and also held
incommunicado. He has been tortured and I don't mean by having his
dessert taken away from him. Waterboarding isn't funny or mild in any
way.
Now what would YOU, if you were his attorney, do in these
circumstances?
Also if KSM is presumed innocent, so are his associates in AQ. Then
the government is also guilty of murder because it attacks and kills
members of AQ based solely on association. It's the same as if the FBI
claims some guy is a member of OC and then the military bombs the
houses of all the known associates of that person so accused
indiscriminately killing only only the associates, but all family
members and any unlucky passerbys.
The open trial of KSM is an example of mad dog partisanship taken to a
previously unknown height.
> The government will be forced by even a lame fool defense team to
>either reveal things that should not be revealed or expose itself to
>losing the case.
>
>You can make a case that the previous trial of 'the blind sheik' led
>to 9/11. No telling what this will do.
>
>The intelligence released at that trial informed UBL that the US
>government was getting close to him. That led him to move from the
>Sudan to Afghanistan where he had the time to plan 9/11.
>
I can not find anything concerning a connection between bin Ladin and
the blind sheik. The former left the Sudan and returned to
Afghanistan because of continued pressure from the US. Egyptian and
Saudi governments all of which were after him for a host of reasons.
>There is a huge problem. If you listened to Holder at the
>Congressional hearings, he seemed to have no idea of the consequences
>of what he is doing here. He seems to be operating on pure political
>motivations rather than legal. So let me ask you one legal question.
>
>In a civilian trial, the accused is assumed innocent until proved
>guilty. This guy, KSM, who now is presumed innocent, has been
>imprisoned for, what, six years, denied a lawyer and also held
>incommunicado. He has been tortured and I don't mean by having his
>dessert taken away from him. Waterboarding isn't funny or mild in any
>way.
>
<rest snipped>
Apparently, the options are: continue to hold him without a trial,
execute him without a trial, try him under the 2006 Military
Commissions Act, try him in federal court, try him in a state court.
Obviously there are pros and cons to all of these options. Only two
trials have occurred under the 2006 Act, the Hicks and Hamden cases.
The only time during a MC trial that the court is to be closed is when
secret testimony will be given or discussed. Evidence obtained from
torture is not to be considered. Because of lack of precedents and
continual legal challenges to their legitimacy, it is not clear to me
that such trials will have better effects than the other options. For
example, KSM and his four co defendants tried to plead guilty in front
of a MC in Dec. 2008. The judge did not accept the plea since it was
not clear, under the MC Act, if he could impose the death penalty
without a trial.
> On Nov 20, 9:40�pm, "Doug McCrary" <dougmccr...@spamcop.net> wrote:
>> "Ricky Jimenez" <ricky...@bestweb.net> wrote in message
>>
>> news:kbt2g5dq02knh578f...@4ax.com...>http://online.wsj.c
>> om/article/SB2000142405274870443180457453737066583...
>>
>> > The title of the article is:
>> > "The KSM Trial Will Be an Intelligence Bonanza for al Qaeda"
>>
>> > As excerpt:
>>
>> Hockypuck.
>> The government isn't going to release anything it doesn't want to.
>
> The government will be forced by even a lame fool defense team to
> either reveal things that should not be revealed or expose itself to
> losing the case.
>
> You can make a case that the previous trial of 'the blind sheik' led
> to 9/11.
No telling what this will do.
>
> The intelligence released at that trial informed UBL that the US
> government was getting close to him. That led him to move from the
> Sudan to Afghanistan where he had the time to plan 9/11.
I'd like to hear that case. Omar Abdel-Rahman, the so-called blind
sheik, was convicted in late 1995 of seditious conspiracy in the the WTC
bombings of 1993. The defendants in that case left a trail of evidence
in New York and New Jersey. I doubt that there was any testimony about
Sudan. Sudan expelled OBL in 1996 under pressure from Egypt, Saudi
Arabia, and the US.
<snip/>
> Also if KSM is presumed innocent, so are his associates in AQ. Then
> the government is also guilty of murder because it attacks and kills
> members of AQ based solely on association.
The US kills members of AQ based on their declared intent to attack US
personnel.
KSM is presumed innocent of the crime of killing civilians.
> It's the same as if the FBI
> claims some guy is a member of OC and then the military bombs the
> houses of all the known associates of that person so accused
> indiscriminately killing only only the associates, but all family
> members and any unlucky passerbys.
>
> The open trial of KSM is an example of mad dog partisanship taken to a
> previously unknown height.
What partisanship do you imagine is going on here? There's no doubt that
there is a political component to the trial. For one, there's almost no
possibility of getting from a military court a verdict untainted by
torture and other violations of law. This may also be a strategy to
downgrade the detainees from particiants in a war to the common criminals
that they are.
It also is a chance to demonstrate that we operate under a system of laws
balanced between justice and the restraint of the state. Such a system
undertakes some types of risks as it seeks to mitigate others.
I know you're scared, but suck it up and try to be worthy of the system
that our founders left us.
I'm no expert in this field, just a citizen, but I'm happy to throw in
my two cents.
Agreed. Or, better put, the government will have (i.e. already has)
assessed the risk of unwanted intelligence disclosures as part of the
circumstances affecting the decision to prosecute, and has (already)
decided that, on balance, those disclosures are worth making (or, are
worth the risk of having to be made, if the info in question is not
part of the government's prima facie case in chief but instead
involves potentially exculpatory materials that may be sought by the
defense), coupled with a prosecutorial assessment that they have a
very solid case, based on knowing exactly what the charges are they
intend to bring, and how strong their evidence is in support of those
particular charges.
Despite popular misconception, it is _not_ necessary to give a
demagogic defendant (of whatever extremist stripe - Jihadist, KKK,
Black Panther, SDS Weather Underground, Unabomber, McVeigh, IRA, and
so on) a platform to spew his ideology, in order to give him a fair
trial ON THE ISSUES that either support or refute the charges against
him. Someone who has blown up an occupied building (or attempted to
do so, or ordered others to do so) is not permitted to point to the
alleged corruption or illegitimacy or racism or anti-racism or
warmongering committed by the Federal government, or the West's
alleged crimes against the world of Islam, or anything else of that
nature, as a defense to this charge - the law does not recognize these
matters as a justification or excuse or defense of any kind to the
charge of plotting to kill random, non-belligerent, innocent civilians
by use of explosives for purposes of terrorizing them.
> The government will be forced by even a lame fool defense team to
> either reveal things that should not be revealed or expose itself to
> losing the case.
Why? Only if the things the defense asks to be revealed are in some
way relevant to the case. The relevant issues are whether the
defendant ordered and/or directed the 9/11/01 attacks.. Whatever
intelligence networks the USA has in place _now_, the government has
decided that it is safe now to reveal the necessary evidence even if
it may give enemies some clue to the existence of the information-
gathering tools we had in place _then_. One must remember that these
events happened over 8 years ago and that even though we are still
fighting Al Qaeda, it is a very different fight now than it was then.
Also, you may perhaps be conflating the discovery rights the defense
has (and duties the prosecution has) in a criminal trial, which are
severely limited, with the much broader "fishing expedition" discovery
rights that the parties to a civil lawsuit have. Criminal discovery
is generally limited to the defense right, upon request, to receive
(sufficiently in advance of trial, so as to be able to prepare a
defense):
(A) all documentary evidence and witnesses that the prosecution has,
and intends to use IN ITS CASE IN CHIEF (which means it is all stuff
the government is going to have to reveal eventually ANYWAY when they
USE it to prove their case), and
(B) any and all exculpatory materials - things tending to DISPROVE the
defendant's guilt, or affirmatively prove his innocence, however
slightly or peripherally - which ARE IN THE STATE'S POSSESSION.
About the only way the State can get in trouble is if they DENY a
defendant due process and a fair trial by WITHHOLDING evidence the
State is actually going to use at trial, or withholding evidence which
the defense could use to prove their client's innocence.
Frankly, heretical as it sounds, if the government's case against KSM
is too weak to sustain a conviction, _OR_ if sufficient exculpatory
evidence exists to get him as an individual off the hook, then perhaps
an acquittal would be the RIGHT result. So, I don't know why
everyone on the right is bemoaning that the government has chosen to
give him a fair trial instead of just continuing to hold him
incommunicado in indefinite detention as the Bushies did, while
offering the world NO PROOF that he had anything to do with the terror
events.
Also, don't make the mistake of assuming KSM will walk free if he is
acquitted. He is _STILL_ a military prisoner, as a leader of the
belligerent force against us, and can be detained for the duration of
the conflict on that basis, even if he _is_ publicly acquitted of
criminal charges of committing war crimes. If, frex, the USA had
captured General Rommel during the Normandy invasion in WW2, and had
tried him for war crimes because we knew he was working for Hitler,
but, say, that court had determined that he had not been proven to
have carried out any illegal orders, and therefore we acquitted him at
a war crimes trial, do you think that would have meant that we would
have had to let him go back and direct the Wehrmacht's efforts on the
Western Front to oppose the re-conquest of Europe by the Allies? Of
course not. He would be under lock and key until Nazism had been
fully defeated.
> You can make a case that the previous trial of 'the blind sheik' led
> to 9/11.
Well, if that isn't a blood libel of the good faith of those who
prosecuted that case, it's pretty damn close.
In the sense that "everything is connected" and that any and every
act, however tiny, may contribute in some way to huge and unforeseen
results, sure, your statement is tautologically true. But if so,
that statement is true of EVERYTHING, and thus it tells us NOTHING.
One might just as well say that 9/11 was a result of Paul Cassel's
decision to wear tennis shoes on some particular morning of the 1990's
instead of wearing flipflops.
Realistically, though, what OTHER courses of action do you think were
open to the government back then, having identified and captured the
perpetrator of the earlier attack on the Trade Center, and wondering
what to do with him? Should we have let him go? Killed him quietly
and made it look like an accident? Bombed the Bejeesus out of his
foreign training bases and armories without first making a case to the
world community that Al Qaeda, not the USA, were the aggressors and
the violators of international law regarding intentional, unprovoked
attacks on civilians outside of any war zone and at a time when no
declared state of war existed?
> No telling what this will do.
In the sense that no one has 100% foresight, and anything can happen
as a result of _anything_, I suppose that's right. But this doesn't
mean that the alarmism and accusation of incompetence and/or
colllusion inherent in that phraseology is in any way appropriate,
nor, on balance, does it impugn the government's decision back then to
prosecute, knowing what they knew then. Sometimes one just has to
make a decision and move forward to accomplish a goal as best as one
can, even with incomplete, possibly inadequate, preparation, because
sometimes the alternative (not acting, and letting events take their
course) is clearly even worse.
We'd better not defuse that bomb, there's no telling what it will do.
We'd better not prosecute that mafioso or Colombian drug gang member,
there's no telling which witnesses, prosecutors or judges they may
kill.
And so on. But, we have to try to do both of those things, and many
other similarly dangerous ones, anyway.
> The intelligence released at that trial informed UBL that the US
> government was getting close to him. That led him to move from the
> Sudan to Afghanistan where he had the time to plan 9/11.
Apples and oranges. What, do you think bin Laden doesn't know _now_
that we're onto him, already? That's old news, even if (for the sake
of argument) it is partly because of revelations from the trial of the
first Trade Center attackers. He's not going to pack up and move,
_again_, because we are prosecuting KSM this time around.
I'm gathering that your alternative suggestion is that the USA should
play by what NY Times Mideast correspondent Thomas Friedman calls
"Hamas Rules,"** i.e. the scorched-earth policy (literally) that
Syrian dictator Assad implemented against the Islamist dissident town
of Hama, Syria, which he wiped off the map in IIRC the early 1980's.
To some extent the entire Bush/Cheney approach to the Muslim Middle
East was an implementation of Hamas Rules. But when we play by those
rules, we betray everything we supposedly stand for as a beacon of
freedom and justice, as a role model for the rule of law. That is an
even deeper betrayal of American ideals than is a conscious government
decision to reveal certain intelligence sources in the course of
accomplishing what those sources were set up to do, i.e. to gain
provable evidence of the chain of command that ordered the 9/11
attacks.
** See the following definition, frex, excerpted from
http://trinarian.blogspot.com/2006_06_01_archive.html -
"Hamas Rules are guidelines Thomas Friedman observed while he was
stationed in Beirut during the Lebanese Civil War. It basically states
that every enemy action will be responded to with the most amount of
violence possible. You blow up a car bomb on my street, I shell your
neighborhood for twelve hours. You kill my brother, I dedicate my life
to killing everybody in your nation. It's basic foreign and domestic
policy in the Middle East. Friedman coined the term after Bashir al-
Assad in Syria leveled the town of Hama when the Islamic Brotherhood
was acting up and hatching assassination plots. Just leveled the
entire damn city. (It's interesting to note that Assad and Saddam
Hussein were both Ba'athists, secular Arab nationalists, and that the
Islamic Brotherhood was the intellectual foundation for al Qaida.)"
Besides, assuming these criticisms of Holder's decision (and, by
implication, of the entire Obama administration's approach to the
problem) come from dyed-in-the-wool neocons (they do, if you know who
Yoo is) what right do they have to complain about open and honest use
of intelligence info to accomplish a legal purpose, such as
prosecuting the attackers? This, coming from the same cabal who
consciously but covertly outed CIA agent Valerie Plame in retaliation
for her husband, Joseph Wilson's book revealing the lies behind the
Bush/Cheney decision to make war on Iraq? Puh-leeze.
> There is a huge problem. If you listened to Holder at the
> Congressional hearings, he seemed to have no idea of the consequences
> of what he is doing here.
And you think he should lay out his entire prosection case on the
Congressional table, just because Congress called him on the carpet to
explain why he decided to prosecute?
Are you accusing Holder of dissembling, or lying, in his responses to
Congress? No, I didn't think so. Rather, you're accusing him of
sounding stupid. But, since premature revelation of his case strategy
is what would _in_fact_ be stupid, ISTM he was crazy like a fox,
answering no more than he had to. Moreover, I'm wondering what
grounds Congress thought they had in the first place to intermeddle so
recklessly by calling the sitting AG to testify about his
prosecutorial decisions on a case that had not yet come to trial.
> He seems to be operating on pure political
> motivations rather than legal.
That's your assessment, which I don't share. The Nuremberg Trials
established that it is appropriate to hold a belligerent entity's
decisionmakers to at least the standards of basic human decency even
when they are conducting a war, even more so when their conduct is
directed for terror purposes against unarmed, defenseless civilians.
If we don't prosecute and prove our case, if we do no more than hold
our unilaterally declared "enemies" in indefinite detention without
charge or trial, how are we any better than the terrorists we claim to
be fighting?
> So let me ask you one legal question.
Sure. But one is all you get.
> In a civilian trial, the accused is assumed innocent until proved
> guilty.
What that means is simply that the government has the burden of
proving its case. The defendant does _not_ have the burden of proving
his innocence.
It does _not_ mean that anybody is pretending the evidence against KSM
is anything other than overwhelming, or that anyone really believes he
had nothing to do with 9/11.
> This guy, KSM, who now is presumed innocent, has been
> imprisoned for, what, six years, denied a lawyer and also held
> incommunicado. He has been tortured and I don't mean by having his
> dessert taken away from him. Waterboarding isn't funny or mild in any
> way.
Agreed. But he was being held, and tortured, all that time NOT for
law enforcement purposes in the role of one criminally accused, rather
in the role of an enemy belligerent captured by military action on
foreign soil. Again you are comparing apples and oranges if you
think this entitles him to make the same arguments of "cruel and
unusual punishment" or "speedy trial" that would apply to a garden-
variety alleged murderer or conspirator who was captured by law
enforcement officers in the course of a domestic criminal
investigation and who was being detained solely for LAW ENFORCEMENT
purposes. In fact, the act of bringing KSM to trial is an affirmation
that civilian justice _should_ have its say and reign supreme over
military necessity EVEN IF military reasons were originally put
forward to justify his prior treatment. Or, do you think the USA
better shows the world its commitment to openness, justice and
fairness by simply keeping KSM and other AQ belligerents under lock
and key, incommunicado, at Guantanamo for, say, the rest of their
lives, or at least until the Al Qaeda movement no longer exists?
> Now what would YOU, if you were his attorney, do in these
> circumstances?
I don't know. We shall see. But my guess is, the defense will try
to make those kind of irrelevant arguments and turn the trial into a
circus, and that the prosecutor (and the judge) will exercise a tight
rein to prevent that.
> Also if KSM is presumed innocent, so are his associates in AQ.
No. AQ are not merely an alleged criminal conspiracy, they are as a
matter of USA policy considered a non-state military belligerent,
against whom USA has taken rightful military action and reserves the
right to do so in the future.
You're confusing apples and oranges again, where our right to take
military measures against an aggressor belligerent has nothing to do
with our separate right to criminally prosecute one of the aggressor's
leaders for committing crimes against humanity.
> Then the government is also guilty of murder because it attacks and kills
> members of AQ based solely on association.
Oh, come on. This is not what is going on. AQ are active
belligerents, and there is a war on.
Taking military action against an armed and not-yet-pacified
belligerent is not the same as the premeditated killing, without
benefit of trial and conviction, of an enemy individual who is ALREADY
IN OUR CUSTODY. The former is simply war; the latter is the murder
of prisoners of war, which would be a war crime just as would be the
intentional killing of civilians (other than as unintended collateral
damage to a valid military objective). SO, yes, if hypothetically
some Al Qaeda camp somewhere had surrendered to the USA, thrown down
their weapons, and marched out with their hands up, _AND_ our side
then mowed them down with machine guns anyway, I agree that would be
murder, a war crime. But using military force against an armed
belligerent force that has NOT surrendered, one that is still actively
opposing and fighting us, is a whole different ball of wax.
> It's the same as if the FBI
> claims some guy is a member of OC
What's OC? You just threw in a new acronym. I don't know what
you're trying to refer to. Orange County?
> and then the military bombs the
> houses of all the known associates of that person so accused
> indiscriminately killing only only the associates, but all family
> members and any unlucky passerbys.
No, it's _not_ the same. Police action against suspected domestic
civilian criminals has wholly different standards and rules of
engagement than does military action against belligerent targets.
Some collateral damage may be inevitable in the latter situation,
especially when the belligerents hide among and use the cooperating
local civilian population as human shields. Law enforcement, OTOH
must be extremely circumspect to avoid causing collateral damage to
uninvolved civilians, as well as avoid unnecessary PROPERTY DAMAGE to
the criminal suspect's belongings, or else the cops should pick a
better time and place to apprehend their suspects where less risk of
collateral harm will be likely.
The destruction of a belligerent's foodstuffs, water supply, war
materiel, etc., all the stuff that gives them the capacity to keep
fighting a war, is clearly a legitimate military target during a
military operation. OTOH if the FBI (purposely, or through
incompetence) burned up some suspect's house, with OR WITHOUT the
suspect or anybody else in it, they would have a LAWSUIT on their
hands, brought by the victims' survivors, rather than having someone
pin a medal on their chest.
The goals, as well as the methodology, of law enforcement and military
action also differ. LEOs are trying to prevent crime and/or to
capture specific individual criminal suspects so those suspects can be
formally accused and brought to trial. The military, OTOH, when it
is authorized to act per its rules of engagement, is fighting an
identified opposing FORCE, not just a particular individual or group
of particular individuals, and may continue to fight anyone assisting
THAT FORCE, with the goal of militarily DEFEATING that opposing force
OR killing its members or active supporters AS A GOAL, not merely as
an unfortunate side consequence of their attempts to prevent crime or
capture a suspect. I'm not going to go into ALL the differences
between law enforcement, and military action, but you get the drift.
> The open trial of KSM is an example of mad dog partisanship taken to a
> previously unknown height.
Personally, I would say the same thing about the multiple wars that
Bush and Cheney started and Yoo supported. But, you're entitled to
your opinion. In _my_ opinion, the trial of KSM is sending exactly
the RIGHT signal to the rest of the world regarding what the USA is
all about, even as related military action continues.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300