Friday, November 13, 2009

Trials in New York?

Cross-posted by Gary Fouse

Khalid Sheikh Mohammed

"I got rights."

The decision of the Obama administration and the Holder Justice Department to bring Khalid Sheikh Mohammed and four of his main cohorts to stand trial in US Federal Court is a blunder of monumental proportions. As I see it, once the lawyers and the judges get involved, look for these defendants to walk.

As a DEA agent, I spent my career working with the federal courts in prosecuting drug traffickers. Though I am not a lawyer, I do know the rules of procedure pretty darn well. Unless there are some provisions of the Patriot Act that I don't know about, this is what I see coming.

Once these defendants are brought to the US, here come the defense lawyers. Here come the motions for discovery of evidence against their clients-including probably, evidence that is sensitive to our intelligence-gathering process including the identities of foreign sources (and informants) who wish to remain secret. What foreign intelligence service is going to want to work with us on terror matters now knowing that they are likely to be divulged in a US Federal Court?

Do you doubt for a moment that the defense lawyers are going to claim their clients' rights to a speedy trial have been violated since they have been sitting in Gitmo for some 5 years. (Defendants in federal courts have a right to a speedy trial.) How about throwing out the confessions of Khalid Sheikh Mohammed based on the fact that he was water-boarded? Do you really think his confessions are going to hold up? How about evidence gathered from wiretaps not approved and sign off on by some federal judge? How about a challenge for change of venue since New York was the scene of the World Trade Center attack. Obviously, these poor defendants cannot get a fair trial there.

Get ready for a big circus trial in which the defense throws out all the dirt about Bush, Cheney, the Patriot Act, Gitmo, the NSA intercepts, waterboarding and everything else they can think of.

I can really see whoever the judge is assigned to these trials throwing the cases out of court altogether. Even if not, and the defendants are convicted, the appellate courts and the Supreme Court will eventually get involved.

These prisoners in my view are not entitled to anything other a military tribunal. They don't qualify for the Geneva Convention, and there is no need to hand them over to the federal courts. Is this what we are going to do with every terrorist we capture overseas? Watch our courts get clogged up in a hurry.

The example that should have been followed is the case involving the German saboteurs who landed on our shores in World War II, were captured and tried by military tribunals. (Most were hanged.) That is exactly what should have happened here. Instead, our government now chooses to hand them into the federal court system that may eventually have to kick them free on some legal technicality.

But you know what? I suspect Obama, Holder et al already know this.

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