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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President Barack Obama is said to be troubled by executive branch plans to indefinitely detain without trial the “worst of the worst” terror suspects currently held at Guantanamo Bay, Cuba. “It gives me huge pause," the President told The Associated Press last week. "And that's why we're going to proceed very carefully on this front. And it may turn out that after looking at all the dimensions of this that I don't feel comfortable with the proposals that surface on how to deal with this issue."

A plan that would endorse and extend one of the worst Bush-era terror law policies ought to give “huge pause” to the current occupants of the White House. Of all the ways in which Team Obama has so far let down civil libertarians - endorsing a broad “state secrets” doctrine, protecting Bush officials from prosecution over torture memos, fighting to keep basic rights from detainees at Bagram Air Force base, I could go on — surely the most odious is this dabbling in the dark art of endless confinement for men not proven guilty in any court of law.

As the Administration tries to empty and close Gitmo, federal officials continue to say that there are some prisoners — like perhaps Ramzi Binalshibh, Khalid Sheik Mohammed and Abu Zubaydah — who cannot be released into the world but who also may not be triable because of the way evidence against them was obtained (for example, through torture). Bush lawyers made these claims, too, even as they tried to prosecute terrorists under military commission rules. No one who heard candidate Obama’s noble terror law speeches would have predicted he would follow the same course.

But the Bush White House failed only in the execution of its tribunal system. The ginned-up rules at first were patently unconstitutional and are now, several Supreme Court rulings later, still only marginally acceptable (and legally dubious). However, the concept of tribunals for dangerous men — part criminal, part warrior, part terrorist — is a sound one, rooted in the military and legal history of America. So perhaps the most disturbing part of the Obama Administration’s “indefinite detention plan” is that it concedes defeat before a real effort has been made, by current leaders, to come up with a workable, legitimate way to process unrepentant men like Mohammed.

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This article originally appeared in The Denver Post on June 14, 2005.

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You had to see it to believe it. You had to be here, in this non-descript little conservative town nestled in one of the most beautiful parts of the country, inside a Santa Barbara County courthouse.

You had to watch Michael Jackson, his accuser and prosecutors and defense lawyers and judge to truly understand how and why the King of Pop finds himself today in the position he is in.

You had to see how much more pale he looks in person even than he appears on television. You had to see his entourage and the ghastly, ghostly way he walked into and out of court each day. You had to see his fans, the zealots who sacrificed the responsibilities in their own lives to come by day after day to lend support to the molestation and conspiracy defendant.

You had to see the parade of witnesses, so many of them sleazy or creepy or just downright odd, who paraded in front of jurors for three long months.

You had to see what a punk the alleged victim seemed like on the witness stand and how shaky the core of his testimony was. You had to see how delusional his mother seemed and how much her testimony lacked in credibility. You had to see how futilely prosecutors tried to convince jurors that it is a crime for a famous person, a target, to undertake good public relations or swift damage control. You had to see the evidence that piled up to prove the accusing family had a history of setting up and then hitting celebrities for payoffs.

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Can it be that they are finally going to get it right? The Washington Post this morning reports that the Obama Administration is going to re-start military commissions to process and prosecute many of the remaining terror detainees currently held at Guantanamo Bay, Cuba.

Here’s the nut graph from the piece by the Post's Peter Finn: "The rules would block the use of evidence obtained from coercive interrogations, tighten the admissibility of hearsay testimony and allow detainees greater freedom to choose their attorneys, said the officials, who spoke on the condition of anonymity because they were not authorized to speak publicly."

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