Tuesday, November 17, 2009

One Hell of a Law & Order Episode Part 2

Lithwick at Slate examines the inane and dubious criticisms of putting terrorists on trial in New York City.



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14 comments:

patsbrother said...

I have long, drawn out answers for most of the "concerns" raised by the cited post. However, I decided you didn't really care about law, so I'll just leave you with this.

KLM is brought to New York. He is found not guilty. No other country agrees to accept him. Where does he go?

As far as I can tell, out the front door. At which point, with no other home, he becomes a New Yorker.

As between this event and a military trial, can you see why New Yorkers might find this a bit infuriating?

Cousin Pat from Georgia said...

Yes. I absolutely can.

However, we have had half a decade to put him in front of a military trial. We have had half a decade to put him in front of an international court for war crimes. We have had half a decade to put him in front of our justice system.

We have tried terrorists before. We have been very, very sucessful in doing so. Now we do it again, as we should have done years ago.

Cousin Pat from Georgia said...

"This will, then, be a Nuremberg-style event - because it will pit Qaeda barbarism against the cooling, calm and resolute nature of real Western justice in the clear light of history. But it does one more critical thing. It reveals a new confidence in ourselves and the Western way of life."

Cousin Pat from Georgia said...

"[B]ecause federal courts have ample precedent in handling terrorism cases, the case will proceed much faster than it would in a military tribunal: by order of the Supreme Court, military justice is subject to extensive judicial review. After convictions in military courts, the appeals process can drag on, because everything about those tribunals is new and therefore subjected to endless adjudication."

patsbrother said...
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patsbrother said...

Patrick, your length-of-time argument is only valid insofar as he needs to be tried now. The length of time he has gone without trial does not necessitate he be brought to America and tried in civilian courts.

Yes, we've tried terrorists before (like McVeigh, the DC sniper and, soon, the Fort Hood shooter), but one big glaring difference is they were all apprehended in America. Someone captured on the battlefield and not kept on American soil are not entitled to a trial in American civilian courts.

What I don't understand is why the Justice Department did not come to the conclusion that is really demanded by your argument: give him what he has been waiting for. Give him his trial in military court in Guantanamo and do it now. Nothing is preventing that, nor has it for the past ten months.

What truely puzzles me are Attorney General Holder's comments on the case and the defendant. If you're a prosecutor (indeed, head prosecutor), shut the hell up about the defendant and the merits of his case. Say what evidence you have if you really feel it's necessary, but otherwise ixnay and the omments-kay. Mr. Holder calling KLM a coward during his testimony before Congress was idiotic, is not what a prosecutor should do in advance of trial (especially when his ultimate point is that we're trying to give KLM a fair trial), and is only intended to give himself political cover for his boneheaded decision. Which is cute and all for a politician but absolutely NOT what a prosecutor is supposed to do.

And that last quote you provided is downright laughable. Taken in context with the other information you posted, it says: "We can't try KLM in military court because he should have all the protections present in a civilian court. We also shouldn't try KLM in military court because of all the protections he'd receive in the military court system though judicial review."

Cousin Pat from Georgia said...

My "length of time" argument stems from the belief in "speedy and public trials" as well as "due process," you know, those Constitutional guarantees that make us a better society than everyone else.

The "length of time" argument also stems from the "justice deferred is justice denied."

These are all part and parcel of what being an American is all about. They are not things I just made up on the spot for purposes of political hackery.

As far as jurisdiction is concerned, we can treat KSM as a criminal or as a prisoner of war. One means we bring his ass back here for trial like the criminal he is. The other means we keep him happy and well fed until hostilities desist, and then we let him go.

Military trials? Like I said before, the old administration had over 6 years to persue that option.

They were unable or unwilling to do so. Which should tell you all you need to know about why I feel the way I do about the last administration.

Bring this dude to trial. Now. Justice Department folks seem to think they're going to have a better chance to wrap this up in New York City. They've been working on that decision for 10 months. Since it is more movement on KSM's prosecution than at any point in the last half-decade, I'm willing to give a little benefit of the doubt here.

patsbrother said...

Are you insane? We're not arguing about the desireability of a speedy trial. While we would argue over whether one was is constitutionally guaranteed a speedy trial when he is was captured on foreign soil and hitherto had never stepped foot in America, we have no argument over whether someone should get a speedy trial. We are not arguing about the imperative of finally getting the man a trial of some kind. We are arguing over your theory that the delay means we should bring him to American and try him in a civilian court.

Getting back to that topic, I will repeat myself: Your argument IN NO WAY explains the inability of trying him TODAY in a military tribunal without bringing him to America. Simply saying - oh, they had six years - says ABSOLUTELY NOTHING about the desireability of a civilian court or the undesireability of a military tribunal. Get your head out your ass and get off your high horse.

And to address another point you oddly threw in, you do the current Justice Department a disservice by saying they've been "working on that decision for 10 months." That's a joke and you know it (or you should know it). Hopefully they were busy with other things and just got back around to this decision. Otherwise they are incompetent fools who don't need to be in charge of anything.

Cousin Pat from Georgia said...

First of all, if an individual who has committed crimes against the United States is apprehended by agents of the United States somewhere other than the United States, we can let him go because of jurisdiction or keep him. If we keep him, we submit him to the justice system of the United States, as we are the ones who have custody.

It doesn't matter the nationality of the criminal. If we have him, he is tried by the United States under United States law. This is very simple.

As to the decision to try him based on laws we alreay have (Federal court) or a system we recently created (military trials for terrorists), that decision rests with the Justice Department.

Both options were available to the LAST ADMINISTRATION. Both options are available to the CURRENT ADMINISTRATION.

The last administration decided NOT TO USE EITHER OPTION.

The current administration has now decided to use ONE OF THE OPTIONS. The current administration has explained that they believe they have a BETTER CHANCE OF CONVICTION with the option they chose rather than the option they did not choose.

One might assume they have spent some time and effort investigating which option would be better.

Weighing options, investigating scenarios, and attempting to make the correct choice based on the information you have is not the method of incompetent people.

They have now come to a conclusion, have announced their decision and plan to move on it.

What is difficult to understand or insane about any of this?

Cousin Pat from Georgia said...

Holder explained that while military commissions had produced only three convictions, 300 international and domestic terrorists are in custody following civilian trials in federal court, including the men responsible for the 1993 World Trade Center bombing and attacks on U.S. Embassies in Africa.

patsbrother said...

Apparently you're relying entirely off of a bald assertion that the Justice Department decided to switch venues because it would be "easier" to get a conviction in New York.

(I say "apparently" because your assertions about what the Bush administration did or did not do ALSO do not explain the necessity or the desireability of the switch.)

Apparently you're the new Britney Spears and you believe that we should just trust every decision this President. Hit me, baby. One more time.

Stop babbling about jurisdiction. No one as far as I know has ever said we couldn't bring this case in New York. (You know, the site where the conspiracy kind of came to a head?) While you've been going on about that non-issue as a sideline to your rant against Bush, I was talking about the necessity of bringing KLM within the umbrella of the Constitution, which covers anyone inside America but only certain people without it. (One more time: the length of time that has already expired does not inform which venue is better suited for this case.)

Upon further review, there are two big concerns I have about the Justice Department's actions.

First, what does it say about how fair KLM's trial will be when the head prosecutor of the federal government openly states he's changing the venue of the trial because he believes it will be "easier" to get a conviction? Personally, I think that undercuts your inapposite squishy talk about justice. (I say inapposite because your squishy talk about the speed of justice did nothing to explain why an otherwise undesireable venue change was necessary.) How will trying him in our civilian courts dazzle the Afghan backwoods when our stated reason for making the change is to make us more certain we're going to kill him? This isn't a show for terrorists, it's a show for us.

Second, reading articles online and then checking on Wikipedia, it seems KLM's military tribunal began in mid-2008, and the new administration halted it. (Apparently to make room for that grueling ten-month decision.) If this is true, I am far more concerned about the venue switch than ever. So, Mr. Non-Lawyer Squishy Talk, what happens if the feds stop an ongoing criminal trial in one forum for no other reason than to bring in it in a more prosecution-friendly alternate forum? Especially when bringing the defendant into that second forum brings him into an arena that adheres to the guarantees against double jeopardy? I desparately hope the reports that the military tribunal already began in 2008 are false or they had the defendant's consent to change venue or something else that I'm not seeing here. Otherwise, were I KLM's attorney, the first motions I would file in New York would be motions to quash the indictment and dismiss the case.

patsbrother said...

Great. Now the president is saying things like: "when [KLM']s convicted and the death penalty is applied to him..."

Stop. All of you. Stop. Just stop talking about the case itself. Either your decision is justified based on objective rationales or it's not. Those rationales should NOT require you to make such statements, even if you do backtrack away from them. SHUT THE HELL UP.

Cousin Pat from Georgia said...

Didn't all the Senators ask Holder the same thing? This is what happens when prosecutions and our own justice system are made into political footballs.

patsbrother said...

First, correction: I have been referring to KSM as "KLM". I once wrote a brief for the State in a juvenile appeal and in it we referred to the juvenile by those initials. Over and over again. I'm apparently running on loop.

Second, @ Cousin Pat: I don't care if the Senators breach prosecutorial ethics for the simple reason that they can't, because (unless it's an impeachment case) they're not prosecutors. When they do it, it's just tacky. When a prosecutor (ahem: head prosecutor) does it, it's unethical. I don't care if someone asked him. As an adult, if he was asked a question he shouldn't answer, he shouldn't have answered it. What he's done is boneheaded and disturbing, and I'd actually be surprised if you really disagreed with that.