All Blog Posts from Courtwatch

"The decision to bring Khalid Sheikh Mohammed and four other top al-Qaeda terrorists to New York City for a civilian trial is one of the most irresponsible ever made by a presidential administration. That it is motivated by politics could not be more obvious. That it spells unprecedented danger for our security will soon become obvious."

-Andrew McCarthy, writer for the National Review, in an editorial on CBSNews.com, Nov. 16.

"One of the most irresponsible [decisions] ever made by a presidential administration"? Really? More irresponsible than blowing off warnings in August 2001 about al Qaeda attacks within the United States using planes? More irresponsible than starting a war against Iraq based upon faulty intelligence information? More irresponsible than letting Osama bin Laden escape from Tora Bora? More irresponsible than authorizing the torture of terror suspects in contravention of domestic and foreign law? More irresponsible than insisting upon unfair military tribunal rules despite Supreme Court decisions to the contrary?

Conservatives like McCarthy had their chance to prosecute the legal war on terror and America is still cleaning up the mess they have left. For example, the Bush administration and its supporters in Congress had several opportunities to formulate fair trial rules for men like Mohammed. Instead, the executive and legislative branches tried over and over again to force a series of patently unfair procedures down the throats of the federal judiciary. The argument that the "jihadists were prepared to end the military case" before the Obama administration went the federal civilian trial route ignores the legal chaos and inertia that surrounded the tribunals at Guantanamo Bay, Cuba.

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We won't know until it's over whether the White House was right or wrong to gamble on bringing Al Qaeda leader Khalid Sheikh Mohammed to New York for a federal civilian capital trial. Over the past few days, since last Friday's announcement, I've outlined in great detail why a Mohammed trial is on the whole something to welcome and not scorn. But what if everything does go wrong? What if the many naysayers are right? Here are a few ways in which the biggest criminal trial in American history could turn into a legal and/or political mess. Here also is how the feds could avoid such problems.

Monkey Business, Part 1. In 2006, federal prosecutors had to admit during the middle of the Zacarias Moussaoui 9/11 conspiracy sentencing trial that one of their witnesses (the now-forgotten Carla Martin) had violated trial rules by coaching other aviation witnesses set to testify against Moussaoui. The Mohammed trial will draw 100 times the attention the Moussaoui trial drew. The Justice Department simply cannot afford to have one of its lawyers or witnesses go, um, rogue. Its leaders must impress upon its worker-bees that not just history but God will be judging them for the ethical choices they make in connection with the case. No cheating. No hiding the ball.

Monkey Business, Part 2. About a year after Moussaoui was sentenced to life in prison, federal prosecutors had to tell his judge that they had misled her about the existence of certain interrogation videos that might have been relevant to his case. Turns out the Central Intelligence Agency hadn't been exactly candid with its Justice Department colleagues about the tapes—an iteration of the old intelligence versus law enforcement feud. The feds cannot afford such purposely lack of communication now. Federal prosecutors can't be blind-sided by their own colleagues. The President must demand that all executive branch agencies work together. The left hand must know what the right hand has been doing.

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The United States Supreme Court Monday tackles a sensitive legal issue that has taken on both great political and economic relevance this past year.

At a time when budget shortfalls are causing state and local bureaucrats to release prisoners early from over-crowded and expensive jails, the Justices have chosen to decide whether the Eighth Amendment's prohibition against "cruel and unusual punishment" precludes life sentences without parole for juvenile offenders who have not committed capital crimes.

Two Florida cases bring the topic to the High Court. In one, a 17-year-old was sentenced to life without parole after he was convicted for taking part in an armed home invasion while he was on parole for another crime. In the other, a 13-year-old was sentenced to life without parole after he was convicted for raping an elderly woman.

According to the Sentencing Project, an advocacy organization which tracks such things, of the 111 juveniles around the nation currently serving life sentences without parole for non-capital crimes, 77 are in Florida.

Terrance Jamar Graham and Joe Harris Sullivan, the two young men who are challenging the lengths of their sentences, argue simply that the punishment did not fit their crimes given their respective ages. Lawyers for Sullivan, only 13 when he was sentenced, state the core of his case this way: "Life imprisonment without parole sentences for children of 13 are so vanishingly rare as to make their repudiation by contemporary American society unmistakable." They are thus emphasizing the "unusual" in "cruel and unusual" punishment.

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And so it came to pass that on the day before Halloween 2009 we all were reminded that most of the biggest tricks of the past decade were on us.

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It is easy both to overstate and understate the meaning of the Justice Department's decision Monday to alter its policy toward medical marijuana.

The Obama Administration's ballyhooed shift away from federal prosecution for state-sanctioned pot sales and use does not necessarily signal a turning point in the effort to legalize (and tax) marijuana. We are probably still a generation or two away from that. But the new White House policy is no small matter, either, for it means that tens of thousands of Americans now are free from federal persecution and prosecution for conduct that is completely legal in their own states.

Federal prosecutors now will get little internal blame for failing to bring criminal charges against people who are lawfully selling or using medical marijuana. Nor will federal lawyers necessarily get kudos within the department if they aggressively pursue medical marijuana cases. Forget all the nonsense about federal funding and national endorsements of drug use. The official government position now reverts simply to something akin to legal neutrality: if you smoke it, we won't come, because we have more important things to do with our time.

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Larimer County Sheriff Jim Alderden (left) was just trying to make the best of a bad situation this past Thursday afternoon when he was called to the chaotic home of Richard and Mayumi Heene in Fort Collins, Colorado.

Now, a few days and countless hours of television face time later, he's just as earnestly trying to save his face and cover his butt.

If the Front Range's ill-fated "balloon ride" were a screenplay, it would have been a remake of "It's a Mad, Mad, Mad, Mad World."

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Citing anonymous sources, The New York Daily News told us Tuesday morning that federal officials are thinking about bringing to New York for trial alleged 9/11 mastermind Khalid Sheik Mohammed. The concept is a good one—our federal courts are perfectly capable of prosecuting terror suspects like Mohammed—but the purported choice of venue is weak. The trial of the century for the most important Al Qaeda member ever captured ought to take place in Virginia or Pennsylvania, not New York, for a number of very good reasons.

Bringing Mohammed to trial in New York in a capital case certainly has historical, political and narrative appeal—it would take place just blocks from where the World Trade Center once stood. But locating a death penalty case in downtown Manhattan would immediately give Mohammed's lawyers a trenchant argument to change venue because of the possibility of an unfair trial due to pretrial publicity. If Timothy McVeigh couldn't be assured a fair trial in Oklahoma City before the age of the Internet how in the world could Mohammed be tried fairly today in New York City, which bore the brunt of the 9/11 attacks?

Bringing Mohammed to trial in the Eastern District of Virginia—Alexandria, to be exact—or to the Western District of Pennsylvania—Shanksville, to be exact—would also create live change-of-venue arguments for his lawyers. Northern Virginia was the scene of the crash of Flight 77 into the Pentagon. Somerset County saw the demise of Flight 93. But those arguments wouldn't be nearly as strong as the change-of-venue motion filed in New York. The media in those other places does not remotely saturate the market or drive public conversation the way the media does in Manhattan. So why not start the trial where it is likely to end up? Why not preclude a strong venue challenge?

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The Supreme Court's 2009-2010 term is already shaping up to be an odd one.

First, it started four weeks before the first Monday in October, when the Justices in a September session took up federal campaign finance laws. Based upon the questions (and answers) during a rare summer oral argument, it is virtually a lock that a majority of the Justices will vote to overturn the Court's own precedent and dramatically reduce the impact and effect of the McCain-Feingold law. And if this occurs it will probably be the biggest decision of the term.

Meanwhile, the Court's work this fall, winter and spring is almost entirely devoid of "traditional" hot button cases. I can't remember the last time that occurred. At least at the moment, subject to the addition of new cases to be heard early in 2010, there is no grand abortion case, no Second Amendment tussle, no dynamic environmental law fights over owls or whales or snails, not even a resonant showdown between employee and employee a la Lily Ledbetter. Right now, there isn't even a good, solid, terror law case set for review, although that is likely to change as the Justices round out their calendar.

Sure, there will be decisions we'll all be talking about when they come down. There always are. In fact, one of the very first cases of the October term is one of those made-for-cable conflicts involving a series of dog-fighting videos and the first amendment. It's got lots of sound, lots of fury, but it's not likely to change your life or mine (unless you are into such things, in which case shame on you). Lucky for her, Justice Sonia Sotomayor's debut term sure doesn't figure to posses much of the political and partisan steam its recent predecessors have had.

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The government slapped another one of its cards down on the table Thursday morning when it charged the most famous airport shuttle driver in American history, Najibullah Zazi, with conspiracy to use a weapon of mass destruction (really: conspiracy to detonate a bomb). The new count brings with it the possibility of a life sentence, without parole, and thus is of a more serious magnitude than the original charge, lying to federal agents, with which Zazi had been tagged last weekend in Denver.

The case against Zazi now becomes a true terror case—it won't be long before terror support charges are added to the blend-- and at first blush it seems much sounder than many of the other terror cases we've seen over the past half decade. For example, the allegations against Zazi and "unknown others" are much more detailed, and specific, than were the allegations and evidence presented against Jose Padilla, the once-upon-a-time-dirty bomber who ultimately was convicted of terror support (after the briefest of jury deliberations) in Florida.

For example, the feds say they have videotape of Zazi, and others, purchasing large quantities of hydrogen peroxide and acetone from Colorado beauty shops—ingredients, government lawyers say, that other terror suspects have tried to use to make bombs. They say they found a suspicious scale in his apartment and incriminating bomb-making instructions on his computer. They say they've found backpacks that might have been used in an attack. And they say they have evidence of Zazi attending a terror training camp in Pakistan.

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Ninety years ago, in the shadow of the Great War, long before the invention of cable news and bloggers, the great American writer and journalist Walter Lippmann wrote in Liberty And The News that:

The world about which each man is supposed to have opinions has become so complicated as to defy his powers of understanding. What he knows of events that matter enormously to him, the purposes of governments, the aspirations of peoples, the struggles of classes, he knows at second, third or fourth hand. He cannot go and see for himself.

Americans could not go see for themselves the effects of the Bush Administration's torture policies. There are no commuter flights to Guantanamo Bay, Cuba and the train doesn't run on time to Baghdad's Abu Ghraib prison. The digital cameras that recorded the degradation of Iraqi prisoners at the prison were never supposed to see the light of day. And the video recordings of the Gitmo interrogations were improperly destroyed by the CIA so that they never would.

We were blind but now we begin to see. Slowly, a clearer picture is emerging of the legal and political path from the "torture memos" authorized by the Office of Legal Counsel (by men like John Yoo and Steven Bradbury and Alberto Gonzales) to the reported water-boarding (simulated death by drowning) of Khalid Sheik Mohammed not once or twice but 183 times. What began in 2002 as faux legal ambiguity (about the legality of torture) turned into official military policy and then into a moral and diplomatic disaster and now has become, as almost all facts always do, a part of history.

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