Terror trials in NY

[halplm]

There's a whole bunch of questions involved in this issue, so it's difficult to know where to begin.

As an admitted non-expert I'm a bit confused as to how these things are supposed to work. The appearence to me is that Obama and Holder's move to have the trials in NY are characterizing the 9/11 attacks as a criminal act, rather than an act of war. I understand why they would do this with regards to the politics of the issue. However, it seems this is also the way to make it as difficult as possible to get a conviction.

There are other quesitons this leads too... should 9/11 be an act of war or not? Is it an act of war if they believe they are at war, but we do not?

Furthermore, I completely fail to see the distinction between the terrorists being sent to trial in NY, and the ones being tried by the military... I would think they would all be the same, personally.

[Voronwë the Faithful]

There are other quesitons this leads too... should 9/11 be an act of war or not? Is it an act of war if they believe they are at war, but we do not?

Check out this thread, that was from shortly before your return:

Was 9/11 an act of war?

As for having the trials in a civilian Article III court in NY rather than a military tribunal, I have mixed feelings about it. Certainly it is not intended to make it easier to avoid convicting KSM and the other defendants; that would be the worst possible result for the Obama administration.

[vison]

I think it's the right move, and that's because I think the people who planned and carried out the attacks on 9/11 were criminals.

I have always believed that the matter should have been handled as a crime, not an act of war.

Most people think they will all be found guilty. But - think of this - maybe some of them are actually innocent.

[Voronwë the Faithful]

Legally, the biggest question mark is how much evidence will actually be able to be used in the trial. Certainly KSM's confessions that were compelled though waterboarding and other "enhanced interrogation techniques" will be inadmissible. Even any statements that he made outside of the torture sessions probably will not be admissible in civilian court because he was not -- I suspect -- advised of his Miranda rights. Apparently, the administration feels that it still has enough admissible evidence to convict him/them, but I wonder. And what do they do if he is acqutted? Let him go free?

[halplm]

Legally, the biggest question mark is how much evidence will actually be able to be used in the trial. Certainly KSM's confessions that were compelled though waterboarding and other "enhanced interrogation techniques" will be inadmissible. Even any statements that he made outside of the torture sessions probably will not be admissible in civilian court because he was not -- I suspect -- advised of his Miranda rights. Apparently, the administration feels that it still has enough admissible evidence to convict him/them, but I wonder. And what do they do if he is acqutted? Let him go free?

What else could they do?

I would argue with the right judge, you could get ALL the evidence thrown out. Not to mention how is he going to get a fair trial?

And while I disagree with labling it torture, it is certainly true that without him being given his Miranda rights, nothing would be admissable.

One would hope they would have enough evidence to get a conviction, but is there any doubt they would have with a Military trial? Which begs the question of what do they get out of it by doing it this way?

I'm not saying they are necessarily trying to "get something," but there has to be a reason, and it's not evident to me.

[Voronwë the Faithful]

One would hope they would have enough evidence to get a conviction, but is there any doubt they would have with a Military trial?

Yes. Under the Military Commissions Act of 2006 (the third attempt at forming military commissions after the generally conservative SCOTUS found the first two attempts unconstitutional), much of the same evidence would be inadmissible, even in a military commission.

I haven't looked into enough to determine what the rationale underlying the decision was. I could speculate, but I don't want to that. I do know that President Obama all but guaranteed that KSM would get convicted, then backed away from that when he realized that it made it look like he was pre-judging the results. Bad form.

[halplm]

One would hope they would have enough evidence to get a conviction, but is there any doubt they would have with a Military trial?

Yes. Under the Military Commissions Act of 2006 (the third attempt at forming military commissions after the generally conservative SCOTUS found the first two attempts unconstitutional), much of the same evidence would be inadmissible, even in a military commission.

I haven't looked into enough to determine what the rationale underlying the decision was. I could speculate, but I don't want to that. I do know that President Obama all but guaranteed that KSM would get convicted, then backed away from that when he realized that it made it look like he was pre-judging the results. Bad form.

Oh he did back down from that? I thought that seemed a bit of an odd thing to say. I did notice Holder always saying "alledged" when describing them, which seems to me to be absurd (if proper).

If he walks, though, be it on a technicality or a verdict... that would be trouble... and not just for Obama.

The precedent is confusing as well. Are soldiers supposed to arrest Osama Bin Laden and read him his rights on the battlefield in Afghanistan?

[Teremia]

I'm in favor of judging these people in civilian courts, but my stomach keeps turning when I hear officials (up to and including the President) presupposing that this is a done deal and just a matter of going through some formal stuff to get ourselves a death penalty conviction.

It SOUNDS like a travesty of justice, I have to say. Sounds like "I'll be Judge, I'll be Jury / said cunning old Fury" from Alice in Wonderland.

I don't know enough to know how clear the case is against these people, but it seems disrespectful to our system of justice to be trumpeting reassurances ahead of time that we don't need to worry, these men WILL be convicted and then WILL be executed.

[Voronwë the Faithful]

I agree, Teremia.

[River]

I did notice Holder always saying "alledged" when describing them, which seems to me to be absurd (if proper).

Yes, but it's an absurdity extended to all accused who have yet to face trial, even when it looks pretty cut-and-dry.

I'm a little disgusted with myself for saying this, but honestly, we put ourselves in this bind when we took them alive. There's no way to not put them on trial without looking bad, and no matter how we try them we have to do it properly. So if our evidence sucks, we can't convict. Or, at least, I hope we can't; the only thing worse than the terrorists walking would be the terrorists getting a show trial with a pre-determined result. In other words, my concerns echo Teremia's.

Also, how on earth are they going to put together an impartial jury for these guys?

[Primula Baggins]

Yes. In New York City!

[halplm]

The more I think about it, the more I think there are only two possible outcomes... a show trial that is obviously that, which hurts our standing everywhere (which seems to be important to some people )...

Or an acquittal, which is far worse.

I don't actually see how Obama let himself get backed into such a position.

[Primula Baggins]

He wasn't the one who made the decision to use torture, which is what has contaminated all the evidence. It not only was illegal and wrong, it not only didn't work, it was a stupid move.

[halplm]

Actually, whether it was torture or not is irrelevant. Unless he was read his rights none of anything he said would be admissable.

And it did work.
http://www.washingtonpost.com/wp-dyn/co ... 02818.html

[N.E. Brigand]

...And while I disagree with labeling it torture...

I've never been waterboarded. Have you? Here's a conversation with someone who was, in a controlled situation. It connects loosely to another thread in which I've just posted:

LARRY KING: You were a Navy SEAL.

JESSE VENTURA: That's right. I was water boarded, so I know -- at SERE School, Survival Escape Resistance Evasion. It was a required school you had to go to prior to going into the combat zone, which in my era was Vietnam. All of us had to go there. We were all, in essence -- every one of us was waterboarded. It is torture.

KING: What was it like?

VENTURA: It's drowning. It gives you the complete sensation that you are drowning. It is no good, because you -- I'll put it to you this way, you give me a waterboard, Dick Cheney and one hour, and I'll have him confess to the Sharon Tate murders.

KING: Even though you know it's not going to happen -- even though before it, you know you're not going to drown.

VENTURA: You don't know it. If it's -- if it's done wrong, you certainly could drown. You could swallow your tongue. You could do a whole bunch of stuff. If it's it done wrong or -- it's torture, Larry. It's torture.

(Source.)

[vison]

I did notice Holder always saying "alledged" when describing them, which seems to me to be absurd (if proper).

Yes, but it's an absurdity extended to all accused who have yet to face trial, even when it looks pretty cut-and-dry.

I'm a little disgusted with myself for saying this, but honestly, we put ourselves in this bind when we took them alive. There's no way to not put them on trial without looking bad, and no matter how we try them we have to do it properly. So if our evidence sucks, we can't convict. Or, at least, I hope we can't; the only thing worse than the terrorists walking would be the terrorists getting a show trial with a pre-determined result. In other words, my concerns echo Teremia's.

Also, how on earth are they going to put together an impartial jury for these guys?

You are absolutely right, River.

But the "bind" was when Mr. Bush and his chums decided to put them in Guatanamo in the first place. They should have been brought into the US, and treated like common criminals. Read their rights, charged, and tried. It could have been over years ago. Now, it's one of those "no-win" situations.

Not only that, but many of the men imprisoned in Guantanamo ARE innocent. This is something many Americans refuse utterly to recognize.

[halplm]

I did notice Holder always saying "alledged" when describing them, which seems to me to be absurd (if proper).

Yes, but it's an absurdity extended to all accused who have yet to face trial, even when it looks pretty cut-and-dry.

I'm a little disgusted with myself for saying this, but honestly, we put ourselves in this bind when we took them alive. There's no way to not put them on trial without looking bad, and no matter how we try them we have to do it properly. So if our evidence sucks, we can't convict. Or, at least, I hope we can't; the only thing worse than the terrorists walking would be the terrorists getting a show trial with a pre-determined result. In other words, my concerns echo Teremia's.

Also, how on earth are they going to put together an impartial jury for these guys?

You are absolutely right, River.

But the "bind" was when Mr. Bush and his chums decided to put them in Guatanamo in the first place. They should have been brought into the US, and treated like common criminals. Read their rights, charged, and tried. It could have been over years ago. Now, it's one of those "no-win" situations.

Not only that, but many of the men imprisoned in Guantanamo ARE innocent. This is something many Americans refuse utterly to recognize.

You realize how many more people would be dead if they had done it that way, right?

[River]

No, actually, I don't because we don't know if the plot would have succeeded. We put a lot of new security measures in place after 9/11, closing up the weaknesses the original gang exploited. If the terrorists had any sense, they wouldn't be trying the same thing twice.

The funny thing about waterboarding is the only people you ever see or hear debating whether or not its torture are people who've never actually been waterboarded. Those who have been waterboarded always come out and say "It's torture." And I'm inclined to put the word the experimentalist ahead of the theorist. Especially since I know the fear of drowning.

[Cerin]

It seems very confusing to me. If we're considering this to have been an act of war, how have we tried people in the past, who were part of the opposition in other wars? Have we tried them? Wouldn't we have to view it as a war crime, if we were trying him in that context? Can we try citizens of other countries for war crimes? Don't we return them to their own countries for that, or to the international military court?

On the other hand, if we're trying him for a criminal act, then I don't see how we can do so but in a criminal court under our laws.

The only thing that seems clear to me is that it isn't right to hold people indefinitely without charge and without legal recourse.

I agree with vison, it would all have been so much easier if different decisions had been made at the outset. And I'm certainly aware that many of those sent to Guantanamo Bay were simply innocent people caught up in mass arrests. I think many Americans are aware of that.

[Cenedril_Gildinaur]

In a normal war, enemy combatants are treated as Prisoners of War and not put on trial. They are repatriated when the war is over. Only those whose offenses are egregious enough to merit attention would be put on a war crimes trial, and then it pretty much takes being on the losing side for that to happen.