No Military Commission For You

November 13, 2009 10:53 AM

Guantanamo Bay detainee Khalid Shaikh Mohammed, along with four others, now faces trial in federal court in New York. The United States is seeking he death penalty. "This is definitely a seismic shift in how we're approaching the war on al-Qaida," said Glenn Sulmasy, a law professor at the U.S. Coast Guard Academy. Mohammed was water boarded over 180 times: it is unclear if his confession will be admissible.
posted by bearwife (94 comments total)

I have an interesting legal question.

Isn't one of the principles of a trial in the American legal system that your jury has to be comprised of impartial jurors?

How on EARTH do they think they're going to FIND impartial jurors in the United States in this particular instance?
posted by EmpressCallipygos at 11:06 AM on November 13

Well, the potential jury pool certainly won't be any more prejudiced than a military commission would. This is, in my opinion, a good thing, and a positive step toward bringing all current terror detainees into the civilian courts where they belong.

Josh Marshall of Talking Points Memo offers some observations of his own on this story. For instance, the following in particular strikes me as on point:

There's a widespread belief that many seem to have that calling these people criminals and treating them as such somehow elevates their status and diminishes the fact that al Qaeda has effectively been making war on the United States. I've never understood this mindset. The key point in World War II is that at the end of the war the Allies would not deign to accord the leaders of Germany and Japan the respect accorded to defeated armies. They were tried as criminals. Because that is what they were.

posted by saulgoodman at 11:12 AM on November 13 [8 favorites]

I still think that the death penalty is inhumane. Even for a guy like this. But it's also too soft a punishment. I say lock him in a cell with Nickelback. Let him eat nothing but McDonalds, and let his only other contact be the images of all the innocent people he has taken from this world.
posted by ageispolis at 11:12 AM on November 13

I'd be willing to give it a shot.
posted by Liver at 11:14 AM on November 13 [1 favorite]

I say lock him in a cell with Nickelback. Let him eat nothing but McDonalds, and let his only other contact be the images of all the innocent people he has taken from this world.

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?
posted by Doublewhiskeycokenoice at 11:15 AM on November 13 [66 favorites]

How on EARTH do they think they're going to FIND impartial jurors in the United States in this particular instance?

Well, the same issue existed with the Moussaoui trial in 2006 (although Moussaoui was a lower-profile defendant compared to Mohammed). That jury spared him the death penalty, despite the fact that he mocked the proceedings and gave the court the middle finger throughout the case.

The jury selection process here will certainly have to be lengthy and well-crafted, but it should be possible to compose a panel of impartial jurors who will take their duties seriously.
posted by brain_drain at 11:15 AM on November 13 [1 favorite]

'Impartial' doesn't mean that they don't find the crime repugnant, just that they're capable of weighing the facts in the particular case in an impartial manner. I don't really think that jury selection will be that big a problem, at least not more than in other high-profile cases.

I'd imagine that people with an intensely personal connection to 9/11 might be eliminated in voir dire, though.
posted by Kadin2048 at 11:15 AM on November 13

I wonder how the fact that he's been repeatedly tortured over an extended period of time will impact this prosecution.
posted by Pope Guilty at 11:17 AM on November 13 [4 favorites]

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?

Only in America is it necessary to justify calls to end the death penalty with "because they'll suffer more alive"
posted by crayz at 11:18 AM on November 13 [14 favorites]

Well, the potential jury pool certainly won't be any more prejudiced than a military commission would.

Ah, good point. Thanks.
posted by EmpressCallipygos at 11:20 AM on November 13

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?

Because then what would Nickelback do?
posted by ageispolis at 11:24 AM on November 13 [2 favorites]

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?

FLY A PLANE INTO HIM
posted by fire&wings at 11:25 AM on November 13 [13 favorites]

An unfortunate aspect of this trial may be the drive to legitimize torture based evidence. The (to my mind natural and correct) desire to destroy him is going to butt up against the fact of his nearly 200 waterboardings and whatever else they did to him that I don't know about. The prosecution will naturally want to preserve every bit evidence they can and it seems inevitable that will lead to arguing for using evidence in spite of its being obtained by (or after) torture.

My Federal criminal defense attorney ex taught me that exceptional cases make bad law. The high emotion and political interest inherent in some cases results in legal outcomes that ignore existing precedent or set bad new precedent.

EmpressCallipygos: Isn't one of the principles of a trial in the American legal system that your jury has to be comprised of impartial jurors?

I don't think we are guaranteed an impartial jury. The questions asked by prosecution and defense during jury selection amount to can you set aside your inclinations to favor one side or the other and deliberate only the evidence presented and the judges instructions. The theoretical bar to entry is recognizing areas where we lack impartiality and setting them aside for the purposes of jury duty. Not an easy proposition for anyone.

IANAL. Anyone who is please correct me if I'm mistaken about something here.
posted by Babblesort at 11:31 AM on November 13 [1 favorite]

Well, predictably, Republicans from all over the map are denouncing this latest step as another step on the slow march toward establishing Islam as the national religion.

I swear, for all their tough-talking braggadocio and chest thumping, the politicians of the Republican party have got to qualify as the whiniest, chicken-shit little pustules ever to adorn the ass of humanity.

"OMGZ! Bringing The Terrorists here, to the Homeland? When we're already so scared shitless of them we're on the verge of pissing ourselves to death in mortal fear? Be scared of the great superhuman terrorist threat, dammit! Don't you remember? They're not even properly human anymore--the CIA trained them to be super warriors back in the days of the Mujaheddin

Warns the ever insightful Florida senator George LeMieux:

"The war on terror should not be reduced to criminal-justice matter. Islamo-fascist terrorism is a threat to our national security and should be treated accordingly. The men who planned and executed the 9/11 attacks are not bank robbers - they are dedicated to destroying our way of life."

Never mind that terrorism has always historically been considered a criminal justice matter and it's only been since the chicken-little policy hawks first took wing under Bush that anyone's ever seriously held such outsize, unrealistic views of fanatical individuals who, let's face it, as hardened as they might be, aren't likely even a fraction as dangerous on a personal basis as "less dangerous" civilian criminals like Jeffrey Dahmer.
posted by saulgoodman at 11:33 AM on November 13 [14 favorites]

I expect that their attorneys will file for a change of venue posthaste. But change of venue was denied (p. 22) in the Moussaui trial on the grounds that "the events on September 11th affected the whole nation; and, therefore, there is no reason to believe that people in Colorado or Utah or Maine would be any less aware of what has gone on than would the people in Northern Virginia." Change of venue from Northern Virginia was also denied for Johnny Walker Lindh for similar reasons.

On the other hand, Timothy McVeigh and the DC snipers got changes of venue...
posted by yarly at 11:34 AM on November 13 [1 favorite]

...waterboarded 183 times. Can't get my head around that.

I also see that Canada's "teen terrorist" Omar Khadr has finally made the cut. A big "fuck you" to our Canadian government for not doing anything to repatriate him. Assholes.
posted by Artful Codger at 11:35 AM on November 13 [4 favorites]

Rule by law? Wait, I thought we had a Decider (TM) to handle all of that!
posted by yeloson at 11:37 AM on November 13

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?

Only in America is it necessary to justify calls to end the death penalty with "because they'll suffer more alive"

This makes me so sad. From what people claim about America, we're supposed to be the big brother country, the example, the manly man of countries. We're supposed to speak softly and carry, but not necessarily use, a big stick. The patient, wise nation who never stoops to the level of more savage or corrupt societies, not necessarily so prideful and hidebound as the British once were, but never using contemptible tactics like terrorism or torture.

Instead, we're the nouveau-riche asshole country, the one spouting "no homo," and pummeling any country that gives us the wrong look. We're the guy taking up 3 seats on the subway and acting offended when someone suggests that we might move a little bit to let a little-old-lady country take a seat.

We should abolish the death penalty, not because some people don't deserve to die, but because we're too good to kill them. We ought to be a kinder, more benevolent country that refuses to kill or torture on principle, no matter what.

What I don't really get, is why there isn't a single politician willing to put that out there. Posit the notion that endorsing the death penalty is being "weak on crime." Just giving up on a person, taking the easy way out is lazy.
posted by explosion at 11:39 AM on November 13 [22 favorites]

What I don't really get, is why there isn't a single politician willing to put that out there.

Your premise is false.
posted by Flunkie at 11:42 AM on November 13

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?

QFT.
posted by dirtynumbangelboy at 11:45 AM on November 13

I vote for locking him up at Riker's Island. Whatever happens, happens.
posted by mark242 at 11:50 AM on November 13

Wherever he ends up, let's make sure he gets to keep his t-shirt with the giant stretched-out neck.
posted by brain_drain at 11:52 AM on November 13 [2 favorites]

I vote for locking him up at Riker's Island. Whatever happens, happens.

Ha! It's funny 'cause he'll maybe be raped or murdered.
posted by Doublewhiskeycokenoice at 11:57 AM on November 13 [7 favorites]

So much for all those morons who said it was totally impossible to try this guy in court.
posted by delmoi at 12:00 PM on November 13

Isn't one of the principles of a trial in the American legal system that your jury has to be comprised of impartial jurors?

Impartial doesn't mean Vulcan-like neutrality. Given all the baggage of the Bush years and the War on Terror, I would imagine there's no shortage of people willing to give him a scrupulously fair hearing. For all that we "know" he was behind 9/11, we also "know" that what's happened since has been a national infamy--indefinite detention, torture, rendition.

It's enough that someone is committed to the process of justice, not that they feel indifferent about the crime or the defendent.
posted by fatbird at 12:04 PM on November 13 [1 favorite]

BET HE LIEKS OUR FREEDOMS NOW! HOW CAN WE GIVE HIM MOAR FREEDOMS THAN ILLEGALS? OBAMA IS SECRIT MUSSELIM THAT DISRESPECT NINE11 VICTIMS NEVAR FERGIT!
posted by Fezboy! at 12:05 PM on November 13 [5 favorites]

How on EARTH do they think they're going to FIND impartial jurors in the United States in this particular instance

Not just the U.S. but NY in particular. However, it seems obvious that there are at least 12 people who could give him a fair trial. The question is how the jury selection would go. whoever ends up representing him would be able to question prospective jurors to try to weed out biased people
posted by delmoi at 12:06 PM on November 13

Why not just lock him in a cell and treat him like a goddamn human being because we're better than he is?

We should abolish the death penalty, not because some people don't deserve to die, but because we're too good to kill them.

Seems to me that you've answered your own questions.

In addition, any one that says he shouldn't be tried criminally, but by a higher, MILITARY court has divided the law into a lesser and higher rule. They have abrogated their covenant and oath to their nation and desire to turn over the power (rightly belonging to the people) to an unelected military dictatorship. Those people deserve the fate that awaits their nation.
posted by blue_beetle at 12:06 PM on November 13 [4 favorites]

I wonder if this has anything to do with getting rid of Greg Craig as white house counsel.
posted by delmoi at 12:08 PM on November 13 [1 favorite]

Yeah, George LeMieux. Because business litigation is just like f’ing counterterrorism.
The prosecution of the case is going to be tough. Here’s a guy you pretty much have dead to rights with evidence, his videotaped statements prior to being waterboarded aside, he’s all kinds of guilty.

The argument though seems to be that his admissions of guilt, and other evidence gathered by waterboarding invalidates *that * evidence. Not his overall prosecution.
Pretty convoluted. On the one hand, developing him as an intelligence asset was completely screwed by waterboarding him, which was a political act and argued as a military necessity (very loosely speaking – that’s how the Bush administration put it forward). On the other hand, he should be prosecuted and does have evidence which can be used against him which was not the product of waterboarding – but was the product of that arm of the government, the intelligence community (granted, the overalls wearing no underpants Faulkner man-child side of the family, but still..) .
So how does the prosecution separate the U.S. government that illegally and illegitimately tortured him (for fun apparently, but by their statements for ‘intelligence’) from the U.S. government that’s legally and legitimately prosecuting him for his crimes?

What’s disturbing is that, either way – if (by some miracle) the defense wins and all the fruit is poisoned because of illegal action by the government (which is right, but…) or the prosecution is able to shake out evidence gathered by torture from evidence gathered by legitimate means, the goofy apparatus set up by Bushco is granted a sort of ‘exceptional’ status (the fact we’re not currently prosecuting them aside). Because on the one hand one can argue that if Mohammed goes free we need to reinstate the indeterminate state Bushco held him in, in order to not let him go free - and on the other, if you’ve got enough evidence to convict them, why not torture them to shake out more (other than the fact that it doesn’t work, but I’m saying the risk of losing an actual, legitimate case is less).

"In addition, any one that says he shouldn't be tried criminally, but by a higher, MILITARY court has divided the law into a lesser and higher rule..."

Yep. I wonder if those shitheads ordering the torture of prisoners knew they were doing more damage to the country than a squad of fanatics flying suicide airplanes could do. May they live forever.
posted by Smedleyman at 12:09 PM on November 13 [8 favorites]

How would a trail even work since he's been tortured like it's going out of fashion? How are any trials not going to look like kangaroo courts at this points? I feel like the US fucked this all up. Though, I suspect the majority of American's probably don't give a fuck.
posted by chunking express at 12:10 PM on November 13 [1 favorite]

Khadr to face U.S. military commission.
posted by gman at 12:30 PM on November 13

Why is he still in the US. WTF Canada?
posted by chunking express at 12:31 PM on November 13

So much for all those morons who said it was totally impossible to try this guy in court.

Well, that did seem to be the conventional wisdom for a while, and the prosecution is going to have a hell of a time making a case without resorting to the use of evidence obtained through torture. I'm pretty sure at one point I leaned toward the side of those who were skeptical KSM and other abused detainees could ever be brought to stand trial. But if the administration has reviewed all the available evidence and concluded otherwise, or has decided it has to move this way on principle anyway despite the possibility of a failure to successfully prosecute, then deep down that tickles my sense of justice and fair play enough to overwhelm any reservations I might have about the practical legal challenges of prosecuting him and other detainees in similar circumstances.

And on the plus side, I'm reading this as a calculated move to open up criminal prosecutions for other detainees who were once deemed impossible to prosecute over the long term. In light of KSM's unique status as both "the most dangerous terrist master-mind evar" and seemingly one of the most frequently tortured War on Terror™ detainees in custody, if the KSM case can be tried successfully in the civilian courts (without America being subsumed into an Islamist Caliphate in the process), then maybe the trial will serve as a reminder that the American criminal justice system--not military law--should and in fact must be held up as the highest law of the land.
posted by saulgoodman at 12:34 PM on November 13 [2 favorites]

It's true. They say that humanity has never invented a weapon they didn't use - guns, napalm, gas, nukes. One day, mark my words, someone will get Nicklebacked, then God help us all.
posted by dirtdirt at 12:35 PM on November 13 [5 favorites]

I swear, for all their tough-talking braggadocio and chest thumping, the politicians of the Republican party have got to qualify as the whiniest, chicken-shit little pustules ever to adorn the ass of humanity.

I've been saying something similar for a while; the Right has always been very good at lock-step scorn and talking points, much to the damage of the Left's ability to get anything done. I'd love to see a new approach; whenever one of the new Doom and Gloom statements comes out from Fox et al. the Left should just universally respond with something like "I'm sorry, we just don't have time to cater to the delicate sensibilities of these cowards right now..."

I can't even begin to imagine the amount if absolute indignation it would cause, which would allow for a follow-up message "Correction: the delicate sensibilities of these whining cowards..."

Hell, it might even be enough to push Beck to cry on screen.

...waterboarded 183 times. Can't get my head around that.

Well, clearly he had information that he hadn't gotten around to revealing in the previous 182 interrogations. Critical stuff like "I don't like being waterboarded" and "fucking hell, this sucks."
posted by quin at 12:41 PM on November 13 [10 favorites]

Well, that did seem to be the conventional wisdom for a while, and the prosecution is going to have a hell of a time making a case without resorting to the use of evidence obtained through torture.

I don't know why anyone thought that, since we a) had a ton of evidence before he was even caught, and b) gave up tons of info before he was tortured.
posted by delmoi at 12:42 PM on November 13 [1 favorite]

Can we try them in court? Federal Judge John C. Coughenour, a Reagan appointee, has always thought so.
posted by bearwife at 12:42 PM on November 13

waterboarded 183 times.

This is perhaps the best argument against the efficacy of 'enhanced interrogation techniques'. 183 times? Really? I'd think that, somewhere in the teens I would have said "you know, I don't think this is working."
posted by fatbird at 12:45 PM on November 13 [13 favorites]

I wonder if this has anything to do with getting rid of Greg Craig as white house counsel.

That's an interesting question. There are a number of interesting shake-ups taking shape right now that could suggest Obama is finally starting to push-back against the legacy players in the Washington establishment. There's also the thing about "liberal hawk" Peter Galbraith discussed elsewhere on the blue. And then of course, there was the recent, well-timed leak of Karl Eikenberry's confidential memos breaking with the Gates and Petraeus team's position on troop escalation just as President Obama sent Gates and co. packing back to the drawing board to build an exit strategy into their plans for conducting the war in Afghanistan.

It'll be interesting to see how all these recent developments shake out in the end.
posted by saulgoodman at 12:50 PM on November 13 [2 favorites]

It'll be interesting to see how all these recent developments shake out in the end.

Prosecutions for all, and to all a fair trial.
posted by aeschenkarnos at 12:51 PM on November 13 [1 favorite]

If he were found not guilty, he would presumably have to be released.

That, right there, should be evidence enough that the verdict of his future "criminal trial" has already been decided very well in advance. You have your head in the sand if you really think that any administration would place this man's fate (and by extension, the Administration's political fortunes) in the hands of a free and fair trial.
posted by Avenger at 12:53 PM on November 13 [2 favorites]

You have your head in the sand if you really think that any administration would place this man's fate (and by extension, the Administration's political fortunes) in the hands of a free and fair trial.

Well, Avenger, I guess I've got my head in the sand, because all the evidence I've seen says that's exactly what they're doing.

There isn't, so far as I know, any way for the executive to force the judicial system's hand in how it conducts these trials. The only influence the executive branch will have on the outcome is in its role as the prosecution, as in any other case that makes its way into the civilian judicial system.

As we've seen in the recent past, judges have the power to decide US elections. I hardly think any federal judge is worried about serving up the outcome some puny first-term president would like to see in a criminal case under his/her jurisdiction, no matter how high profile the case, or how high the stakes for a particular political party.

The judicial system is not exactly in the control of a bunch of raving left-wingers or Obama supporters. And as delmoi argued upthread, there's apparently quite a bit of good evidence against KSM that was gathered long before he was ever detained and tortured. So maybe they just, um, think they have a really good case. It's not like going to court is the legal equivalent of flipping a coin. If the evidence is solid enough, no court would acquit (unless the prosecution completely bungled its presentation of the case). Maybe the evidence is just that good.
posted by saulgoodman at 1:06 PM on November 13 [1 favorite]

fatbird: This is perhaps the best argument against the efficacy of 'enhanced interrogation techniques'. 183 times? Really? I'd think that, somewhere in the teens I would have said "you know, I don't think this is working."

It's uh... uh... it's down there somewhere, let me take another look.
posted by shakespeherian at 1:16 PM on November 13 [5 favorites]

Greenwald: Detainees to get 'the-state-always-wins' system of justice
posted by delmoi at 1:21 PM on November 13

"I also see that Canada's 'teen terrorist' Omar Khadr has finally made the cut. A big 'fuck you' to our Canadian government for not doing anything to repatriate him. Assholes."

Not only not doing anything but stridently fighting against taking any action. Makes me want to puke; especially now that the American system is actively attempting to kill him.
posted by Mitheral at 1:23 PM on November 13 [1 favorite]

So much for all those morons who said it was totally impossible to try this guy in court.

So much for all those morons who thought Obama "was as bad as Bush" for his Gitmo policy.
I suspected that they could not do it based on the torture problems. I'm thrilled beyond belief to find that they are confident enough to try him in the United States. This means they have independent evidence strong enough to try him. Note that several others will still be tried by military commissions, including one of the Cole bombers. To me, this says they don't have enough evidence untainted by torture.

The difference between your position and mine was simple--that given the choice between release and military commissions, I felt that military commissions were preferable to releasing KSM. Now that it turns out that there is apparently enough untainted evidence to go forward, I'm all for trying him in the US.

In the end, my point has always been that attacking Obama for having issues trying to figure out how to fix Bush's collssal shitpile was counter-productive.

Now for the next task--the selling of the policy to move terrorists for trial to US soil. Please write your representatives and Senators expressing support for the closing of Guantanamo Bay and the relocation of the prisoners to the maximum security prisons of the United States where they belong, closing a sad chapter in the history of the United States.
posted by Ironmouth at 1:25 PM on November 13 [3 favorites]

You have your head in the sand if you really think that any administration would place this man's fate (and by extension, the Administration's political fortunes) in the hands of a free and fair trial.

I want to believe this is specious, but you could very well be right and I'm even sure where to begin addressing that.
posted by joe lisboa at 1:27 PM on November 13 [1 favorite]

*not even sure
posted by joe lisboa at 1:27 PM on November 13

“This is perhaps the best argument against the efficacy of 'enhanced interrogation techniques'. 183 times? Really? I'd think that, somewhere in the teens I would have said "you know, I don't think this is working." “
Waterboarding session 170:
Interrogator: “uh… we’ve waterboarded this guy well over 150 times. I don’t think this is working.”
Rumsfeld: You have no other choice, you must go on.
Interrogator: Oh….ok.

I genuinely think the objective of waterboarding by the Bush administration was, in part, agitation but mostly the enhancement in/enjoyment of the exercise of power.
Get people to waterboard, get people participating in crimes, you tend to bind their loyalty to you (happens in many despotic regimes).
In the real world you don’t have the luxury or the consolation of saying to yourself that it was just an experiment or hypothetical. Hell, how many people will admit they were wrong in just an opinion? Much less an action.
And a lot of folks get their jollies that way. Especially vicariously.

As to KSM taking a walk.... I dunno that it's possible for him to have a fair trial in the first place. Given that it is and maybe can be (since I really don't know), if he's found not guilty he should be cut loose. On the other hand, the U.S. government (under Bush) argued that the presidential prohibition on political assassination does not apply to ‘war’ and (the legal and policy morass implicit in that assertion) doesn’t apply to action against terrorists.
So he could be found not guilty then blown away a few minutes later. Or, die of the measles or something since the CIA was authorized to conduct black op wet work against the Base.
Not arguing for it or saying I like it. Just saying it’s there. And if anyone is al Qaeda….

But he’s on the hook for crimes elsewhere as well. So we could give him a fair trial (which, given that, I think he’d still be found guilty without chicanery) and if he were cut loose, subject to prosecution in other countries.
So even if the trial is completely legit, there’s no way he’s not hosed (no pun int’d). Which, I can see why defendants in those circumstances don’t much care about flipping off the judge and so forth.
posted by Smedleyman at 1:32 PM on November 13

If he were found not guilty, he would presumably have to be released.

And if so, I would hope he has an exit strategy for leaving the country. "Not guilty" doesn't mean a lot to a lynch mob who has been fed a steady diet of fear for the last eight years, and there are people who are convinced that this guy represents the closest thing to evil incarnate we can lay our hands on right now.
posted by quin at 1:32 PM on November 13

This is perhaps the best argument against the efficacy of 'enhanced interrogation techniques'. 183 times? Really? I'd think that, somewhere in the teens I would have said "you know, I don't think this is working."

You're still assuming they did it for information. Stop that.
posted by Evilspork at 1:39 PM on November 13 [5 favorites]

You're still assuming they did it for information. Stop that.

Even as entertainment, I'm not sure what the point would be past, say, thirty or forty times.

It would be interesting to see a study of successive waterboardings to determine the point at which even the victim is just bored of the whole procedure. At the point they hit triple digits, I have trouble believing that KSM was anything more than mildly annoyed.

Perhaps the real torture was the Kafka-esque circumstance of endless, pointless waterboardings that no one is getting anything out of anymore.
posted by fatbird at 1:45 PM on November 13 [2 favorites]

Makes me want to puke; especially now that the American system is actively attempting to kill him.

Mitheral: I think you might be misreading the report in a subtle but important way.

The FPP article reports that five of the detainees, including KSM, are to be tried in the civilian court system, with prosecutors pursuing the death penalty. The article goes on to note that:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

These are five different detainees, in other words, who unlike KSM and the four others mentioned earlier in the article, will be tried in the military commissions. The article makes no mention one way or another if the military prosecutors plan to pursue the death penalty in those cases. I'm not saying that they don't plan to, but as far as I know, there's no reason to think that on the basis of these announcements.

Unlike Ironmouth, I think Holder's thinking behind using the military commissions in these latter five cases might not be a calculated move to ensure conviction so much as a reflection of the very real fact that Omar Khadr is charged with throwing a grenade that killed a US soldier in the field. In other words, he's accused of having been actively engaged in combat with American troops, which I think under their legal reasoning makes him a candidate for the military commission system. My guess is the other five designated for military commission trials were in some way similarly engaged in actual on-the-ground combat with American troops, but I don't know if that's the case or not. It's my sense, though, that they're trying to make these decisions in good faith based on legal principle, whether everyone agrees about how to interpret those principles or not.
posted by saulgoodman at 1:46 PM on November 13

(Gah - 'the legal and policy morass implicit in that assertion - aside.'
And folks get their jolles 'that' way - that is - making other people do stuff to hurt others, act contrary to their nature, bend others to their will just for the sake of doing it, etc.
The Cole bombing - bit of a different case. It was a direct attack on a military target in a foreign port. Arguably it's under military jurisdiction. And the political considerations don't help - Yemen didn't want to extradite, already sentenced people to death (which screws up the U.S. intelligence investigation), etc. But I'd lean towards a civilian court trial as well. They had more than ample connection to terrorist organizations.)
posted by Smedleyman at 1:50 PM on November 13

fatbird: It would be interesting to see a study of successive waterboardings to determine the point at which even the victim is just bored of the whole procedure. At the point they hit triple digits, I have trouble believing that KSM was anything more than mildly annoyed.

Yeah the whole inhaling-gallons-of-water-into-your-lungs-because-you-are-drowning thing really loses its thrills after a while.
posted by shakespeherian at 1:55 PM on November 13

Ah, and to support my last comment, there's also this from the AP article in the second link:

The five suspects are headed to New York together because they are all accused of conspiring in the 2001 attacks. The five headed to military commissions face a variety of charges but many of them include attacks specifically against the U.S. military.

So the way it seems to be shaking out is if they are accused of plotting or carrying out attacks on civilian targets, they're being tried in civilian court. If they are accused of plotting or carrying out attacks on military targets they're being tried in the military system.

Hmm. That actually kind of makes sense to me.
posted by saulgoodman at 2:07 PM on November 13

"We're gonna give you a fair trial, followed by a first-class hanging."
posted by kirkaracha at 2:14 PM on November 13

You have your head in the sand if you really think that any administration would place this man's fate (and by extension, the Administration's political fortunes) in the hands of a free and fair trial.

What exactly is it that you're suggesting they're going to do? Pay off 12 randomly selected jurors? Pay off the judge? I have a really hard time believing a trial of this magnitude could be rigged in the manner you seem to be suggesting.
posted by Mavri at 2:32 PM on November 13

David Iglesias, would you care to comment?
posted by mikelieman at 2:39 PM on November 13

Yeah the whole inhaling-gallons-of-water-into-your-lungs-because-you-are-drowning thing really loses its thrills after a while.

I'm sure it does, if by "thrill" you mean "raw, pants-shitting terror and reptilian-level fear of imminent death." Seriously, how many times can you be run through the same mock execution before you realize that you're not going to die, and the reflexive fight-or-flight reaction fades?

Beyond all the wrong of waterboarding someone 183 times, is the unadulterated absurdity of it as either an interrogation technique or a sadistic torture.
posted by fatbird at 2:39 PM on November 13 [2 favorites]

What exactly is it that you're suggesting they're going to do? Pay off 12 randomly selected jurors? Pay off the judge? I have a really hard time believing a trial of this magnitude could be rigged in the manner you seem to be suggesting.

Avenger is trying to win the "more cynical than thou" pissing contest that threads like this inevitably spawn. Quit harshing his mellow.
posted by fatbird at 2:40 PM on November 13

So much for all those morons who thought Obama "was as bad as Bush" for his Gitmo policy.

Oh yes, all those people. Who totally exist.

I suspected that they could not do it based on the torture problems.

Well, you may have only "suspected" it but on many occasions you stated it as an absolute fact. You said over and over again that if he was tried he would be released and Sarah Palin (or someone like her, I suppose) would get elected. You were completely wrong.

The difference between your position and mine was simple--that given the choice between release and military commissions, I felt that military commissions were preferable to releasing KSM. Now that it turns out that there is apparently enough untainted evidence to go forward, I'm all for trying him in the US.

Bullshit. I never once thought KSM would be acquitted if he were tried. I always thought there was enough evidence to try and convict him and I was right. I was completely correct the whole time. My concern was with potentially releasing other detainees that no one's ever heard of. Lots of other detainees have been released both by bush and by Obama, and while Dick Cheney and his idiot daughter have hypocritically complained about the ones released by Obama it's has had no political impact whatsoever.

We know hardly anyone cares about releasing non-famous prisoners. We know Dick Cheney and crew will spin bullshit about it and We know no one will pay any attention to them for more then the week that the media spins it to drum up ratings.

In other words, you were totally wrong about the evidence and try-ability of KSM, and you are totally wrong about the political fallout caused by releasing no-name prisoners, whereas I was correct.

*does end-zone dance*
posted by delmoi at 2:45 PM on November 13 [1 favorite]

Josh Marshall, via Saulgoodman....

There's a widespread belief that many seem to have that calling these people criminals and treating them as such somehow elevates their status and diminishes the fact that al Qaeda has effectively been making war on the United States. I've never understood this mindset.

Hm. You know, I do see it as the second part. I do see it as a deliberate diminishment of "the fact that al Qaeda has effectively been making war on the United States."

But I don't think this "elevates" their status. Quite the opposite: I think it brings them down from some mythical pillar of unstoppable mad devilry to the much more human level of regular old criminals.

And I think that's a good thing to do, to deflate the sometimes hysterical treatment of Al Qaeda or a handful of radicals as some mighty force, as if they are somehow a peer of the nation of the United States, such that conflict between the two could be seen as a "war."

It's loading up acts of terrorism with labels like "war" that is elevating status, here.
posted by rokusan at 2:50 PM on November 13 [5 favorites]

If he were found not guilty, he would presumably have to be released.
And if so, I would hope he has an exit strategy for leaving the country.

You mean beyond Al Swearengen giving him a horse?
posted by rokusan at 2:54 PM on November 13 [1 favorite]

Get people to waterboard, get people participating in crimes, you tend to bind their loyalty to you (happens in many despotic regimes).

I just finally watched Errol Morris's Abu Ghraib film Standard Operating Procedure last week (recommended), which addresses this a bit.

Some of the original prison MPs speak to how the incoming Military Intelligence officers stepped up the involvement of prison staffers in ways beyond their training or official function. They encouraged them to participate and eventually lead the 'softening up' of prisoners who were due to be interrogated by MI. It also appears that they did nothing to prevent or discourage the (officially forbidden, ultimately infamous) photography of abuse.

The MI types seemed very adept, however, at keeping themselves out of the photos.
posted by rokusan at 3:02 PM on November 13 [1 favorite]

I'm sure it does, if by "thrill" you mean "raw, pants-shitting terror and reptilian-level fear of imminent death." Seriously, how many times can you be run through the same mock execution before you realize that you're not going to die, and the reflexive fight-or-flight reaction fades?

I'd be surprised if it did fade, honestly. Waterboarding doesn't work because you intellectually believe you're going to die; it works because mammals have an automatic gut-level terror of drowning, and the second that air hits your lungs, your nervous system freaks out and starts telling your body OH SHIT OH SHIT OH SHIT WE'RE GONNA DIE OH SHIT.
posted by EarBucket at 3:36 PM on November 13

...waterboarded 183 times. Can't get my head around that.

Mohammed's credit rating must be in the low teens, at this point.
posted by Blazecock Pileon at 3:38 PM on November 13 [1 favorite]

That, right there, should be evidence enough that the verdict of his future "criminal trial" has already been decided very well in advance. You have your head in the sand if you really think that any administration would place this man's fate (and by extension, the Administration's political fortunes) in the hands of a free and fair trial.

Well, wait. Is there anyone who actually thinks this guy isn't guilty? He deserves a trial, absolutely. But I think the government can be confident of obtaining a guilty verdict in a fair trial, because there's a mountain of evidence against him.
posted by EarBucket at 3:39 PM on November 13

In other words, he's accused of having been actively engaged in combat with American troops, which I think under their legal reasoning makes him a candidate for the military commission system.

I am not a lawyer, and I am definitely not a lawyer with any knowledge of the Geneva Conventions, so I may be talking complete rubbish here, but: If some of these people have been militarily engaging American troops in the field, and American forces have captured them, why aren't they designated as "prisoners of war", and hence liable to simply be released back to their country at the end of combat operations? I seem to recall the Bush administration coming up with some kind of justification for this that basically boiled down to "THEY'RE JUST NOT, OK", but why would that still be in force now?
posted by ZsigE at 3:42 PM on November 13 [1 favorite]

rokusan - yeah, fostering dependency 101. There are people who make you weaker and people who help you to be you stronger. Typically the former group looks like they're doing you a favor. Sometimes they're even offended if you turn them down, they're so used to that game. Turned down offers and had guys astonished "What? You don't want to kiss my ass the rest of your life?" like it's a virtue.

Metafilter: I was completely correct the whole time.
(no offense man)
posted by Smedleyman at 3:47 PM on November 13

Perhaps the real torture was the Kafka-esque circumstance of endless, pointless waterboardings that no one is getting anything out of anymore.

Cheney was still getting wood out of it.
posted by ryoshu at 3:52 PM on November 13 [1 favorite]

I'd be surprised if it did fade, honestly. Waterboarding doesn't work because you intellectually believe you're going to die; it works because mammals have an automatic gut-level terror of drowning, and the second that air hits your lungs, your nervous system freaks out and starts telling your body OH SHIT OH SHIT OH SHIT WE'RE GONNA DIE OH SHIT.

Absolutely it works on a reflexive level. This is why so many sceptics of waterboarding are immediately converted to the "oh yeah, it's torture" school of thinking once they experience it. But reflexes can be both learned and unlearned; any traumatic experience repeated endlessly is going to dull the reflex.

Perhaps I'm wrong, but I find it very hard to believe that the 183rd time (or even the 20th or 30th) was as subjectively bad as the first time.
posted by fatbird at 4:23 PM on November 13 [1 favorite]

Waterboard Sammy Jankis.

I dunno what 183 times are like. But y’know, drowning sucks and the whole thinking you’re going to die thing – even reflexively – not much fun. And while – maybe, and that’s a big maybe that I don’t ever want to know and I’d be pretty um….shooty, at people who were interested in experimenting to find out – it’s possible that the reflex is dulled and the 183rd time isn’t as bad as the first, I’d think that would be outweighed by the psychological torture alone of knowing that almost inevitably it’s going to happen again.
Like an impeding testicle electrocution at, say, 8 p.m.
Sure, there might be some comfort in knowing that once it happens, it’s over. But the anxiety caused by anticipation and repetition, that can drive you insane. Even if your body starts to (un?)learn and weather it better than the first shot.
And it (waterboarding) has been used as just pure torture, by lots of folks throughout history and into the modern era. I doubt they'd keep doing it repetitively if the effect wore off.
And the conditioning could work, I'd speculate, to the torturers' advantage.
posted by Smedleyman at 5:09 PM on November 13

What exactly is it that you're suggesting they're going to do? Pay off 12 randomly selected jurors? Pay off the judge? I have a really hard time believing a trial of this magnitude could be rigged in the manner you seem to be suggesting.

Well, I'm not exactly sure of the exact mechanics of trial corruption that will take place, but I can assure you beyond any reasonable doubt that the US Government will not allow KSM to go free under any circumstances. They will not allow even the possibility of that happening. It would be a guaranteed political death sentence for the Obama administration.

Maybe I really am more cynical than alot of people here but I honestly don't believe that people in Very High Places are above blackmailing a Federal Judge or causing KSM to be "suicided" in his cell if they feel the trial is going his way. It's not a Democrat or Republican thing, it's the kind of thing that happens when powerful people get desperate.
posted by Avenger at 5:44 PM on November 13

I can assure you beyond any reasonable doubt

You can? How? I'm interested in hearing such an ironclad assurance. Go for it.
posted by Flunkie at 6:02 PM on November 13 [1 favorite]

You're actually debating whether the government would have the nerve to apply undue influence to the trial in which it presents critical evidence gathered from six years of torture in violation of the Geneva Conventions? The one that also illegally wiretaps everyone on the planet?

"Oh no, we couldn't threaten the judge, Mr. Rove. That would be illegal."

Anyone else notice that it works out to a waterboarding every 12 days?
posted by ceribus peribus at 7:29 PM on November 13

"So the way it seems to be shaking out is if they are accused of plotting or carrying out attacks on civilian targets, they're being tried in civilian court. If they are accused of plotting or carrying out attacks on military targets they're being tried in the military system.

"Hmm. That actually kind of makes sense to me.

So how was the Pentagon not a military target?
posted by Jahaza at 7:43 PM on November 13 [1 favorite]

Assuming that that was directed at me, ceribus peribus, no, I'm not debating anything. I'm asking for the promised assurance beyond reasonable doubt, as opposed to assertion, without evidence, of a claim that is only falsifiable in the event that KSM is found not guilty.
posted by Flunkie at 7:52 PM on November 13

Perhaps I'm wrong, but I find it very hard to believe that the 183rd time (or even the 20th or 30th) was as subjectively bad as the first time.

We heard you the first time, OK?
posted by zippy at 8:54 PM on November 13

Maybe I really am more cynical than alot of people here but I honestly don't believe that people in Very High Places are above blackmailing a Federal Judge or causing KSM to be "suicided" in his cell if they feel the trial is going his way. It's not a Democrat or Republican thing, it's the kind of thing that happens when powerful people get desperate.

Conspiracies like this never work.

The judges come from the exact same milieu. Why would there need be any reason to bribe them?

And if indeed evidence not obtained through or from the fruits of torture is entered into evidence, why should they do anything to not convict? Seriously, assuming that relevant evidence showing guilt is introduced at trial, why would anyone wish to see the murderer of 4000 people go free? Is there anyone here that belives that somehow having been exposed to this, the guilty are allowed to go free? No, improperly obtained evidence should not be used, but if one is guilty and it is legally proven, one should not get "time off" for mistreatment. Punish those who acted to torture, but no freedom for properly convicted criminals.
posted by Ironmouth at 9:16 PM on November 13

We heard you the first time, OK?

Well, I'll just STFU then.
posted by fatbird at 9:19 PM on November 13

The one that also illegally wiretaps everyone on the planet?

Its legal for the US government to wiretap anyone outside the US.
posted by Ironmouth at 9:23 PM on November 13

I'm asking for the promised assurance beyond reasonable doubt, as opposed to assertion, without evidence, of a claim that is only falsifiable in the event that KSM is found not guilty.

You are correct that I have no hard evidence that the trial is rigged. I can, however, promise you, with 10,000% metaphysical certainty that KSM will be found guilty. I can promise you this because the White House staffers who floated the civilian trial balloon to Obama had to promise him the exact same thing, as his political future hangs in the balance of the verdict.
posted by Avenger at 10:07 PM on November 13

Its legal for the US government to wiretap anyone outside the US.

Wow, it's surprising that no other countries ever had the idea to ban wiretapping.
posted by delmoi at 12:50 AM on November 14 [2 favorites]

Man in Black: All right. Where is the judge? The trial by jury has begun. It ends when the jury deliberates, and KSM is either convicted or he is acquitted.

Vizzini: But it's so simple. All I have to do is divine from what I know of Obama: is he the sort of man who would rig the jury or allow them to decide KSM's fate freely? Now, a clever man would rig the jury, because he would know that only a great fool would allow that man to walk free. Obama is no fool, so he can clearly not allow KSM to have a fair trial. But he must know that his enemies are no great fools and they would have counted on it, so Obama can clearly not choose to rig the jury or risk being caught.

Man in Black: Obama's made his decision then?

Vizzini: Not remotely. Because his enemies are Republicans, as everyone knows, and Republicans are peopled with Muslim-haters who are used to not trusting Obama, as Republicans are not trusting of socialists, so Obama can clearly not risk letting the Muslim KSM go free.

Man in Black: Truly, you have a dizzying intellect.

Vizzini: Wait til I get going! Now, where was I?

Man in Black: The Republicans.

Vizzini: Yes, the Republicans. Obama must have suspected the Republicans have a great deal of hatred for big government socialists, so he can clearly not risk rigging the trial or being impeached.

Man in Black: You're just stalling now.

Vizzini: You'd like to think that, wouldn't you? Obama's beaten Hillary, which means he's exceptionally strong, so he could have rigged the trial, trusting on his strength to save him, so he can clearly not choose to rig the trial! But he also bested McCain, which means he must have studied, and in studying he must have learned that man is mortal, so he would have put the fair trial as far from himself as possible, so he can clearly not avoid rigging the trial.

Man in Black: You're trying to trick Obama into giving away something. It won't work.

Vizzini: IT HAS WORKED! HE'S GIVEN EVERYTHING AWAY! I KNOW WHETHER THE TRIAL IS RIGGED!

Man in Black: Then Obama should make his choice.

Vizzini: He will, and he chooses - What in the world can that be?

Vizzini: [Vizzini gestures up and away from the table. Man in Black looks. Vizzini hacks The Man in Black's laptop]

Man in Black: What? Where? I don't see anything.

Vizzini: Well, I- I could have sworn I saw something. No matter. First, let's catch the news. Me from Fox News, and you from TPM Muckracker.

Man in Black, Vizzini: [Vizzini and the Man in Black read the news on their laptops]

Man in Black: Obama guessed wrong.

Vizzini: You only think he guessed wrong! That's what's so funny! I switched the news when your back was turned! Ha ha! You fool! You fell victim to one of the classic blunders - The most famous of which is "never get involved in a land war in Asia" - but only slightly less well-known is this: "Never go against a Sicilian when death is on the line"! Ha ha ha ha ha ha ha! Ha ha ha ha ha ha ha! Ha ha ha...

Vizzini: [Vizzini stops suddenly,his smile frozen on his face and falls to the right out of camera dead]

Buttercup: And to think, all that time it was his news that was wrong.

Man in Black: They were both wrong. I planted a fake story with the media yesterday.
posted by Green With You at 1:14 AM on November 14 [3 favorites]

That, right there, should be evidence enough that the verdict of his future "criminal trial" has already been decided very well in advance.

Amazing how those who would be indignant at a rigged court not based on evidence, are perfectly willing to throw out allegations that the court was rigged without any evidence at all.

What evidence, as in actual facts, not suppositions, do you have to assert that a criminal trial, months in the future, is gonna be rigged? Do you have an E-mail from Obama saying "rig this trial?" Do you have evidence of judges being paid off, like bank statements or photos of bagmen?

Let me step in and answer that. No, you don't. So let's call these assertions what they are: fact-free assumptions without any evidence to prove it. Judges being bribed and blackmailed? Really?
posted by Ironmouth at 3:17 AM on November 14

So let's call these assertions what they are: fact-free assumptions without any evidence to prove it.

OK.
posted by Avenger at 4:13 AM on November 14

You are correct that I have no hard evidence that the trial is rigged. I can, however, promise you, with 10,000% metaphysical certainty that KSM will be found guilty. I can promise you this because the White House staffers who floated the civilian trial balloon to Obama had to promise him the exact same thing, as his political future hangs in the balance of the verdict.

You really might want to consider ceasing to use phrases like "I can assure you beyond all reasonable doubt" and "I can promise you with 10000% metaphysical certainty" when what you actually mean is "I assert".

In any case, there's a broad mental leap that has to be made from the starting point of "the prosecutors are very confident that KSM will be found guilty" to arrive at "they are going to buy off the judge and jury, and if things go poorly the contingency plan is to have KSM 'suicided'".
posted by Flunkie at 6:47 AM on November 14

KSM is not going free. In fact, KSM is going to be put to death unless the U.S. Supreme Court prohibits it.

What would happen after his (improbable) acquittal or dismissal of charges on the federal indictment would be rush to the courthouse to arrest him for trial on state murder charges in Pennsylvania, Virginia and New York, and possibly some form of conspiracy charges in New Jersey and Massachusetts where the hijackings originated.

Should he be convicted by spared the Federal death penalty, or should the courts block enforcement of the Federal death penalty, he can be still be tried on death penalty charges in Pennsylvania and Virginia, or maybe even New Jersey (which rescinded its death penalty but had a valid death penalty in 2001 which could be applied with appropriate legislation.)
posted by MattD at 6:52 AM on November 14 [1 favorite]

They're not entirely fact-free. The fact of the matter is, that Obama himself has described triaging detainees based on the evidence against them, and assigning them to different legal systems, including the possibility of indefinite detention without any sort of trial. Thus it's perfectly reasonable to suppose that Obama's top law advisors decided that KSM was a slam-dunk case who could be safely tried, and that in the extremely remote case that he was aquitted, they'd just keep holding him anyway. This interpretation is further justified by the facts that a) the case against KSM has always been pretty strong (excluding the torture-derived non-evidence). and b) the U.S. government's behavior has been marked by special pleading from the very beginning. If the government was really motivated by committement to give the accused a fair trial in an established legal system, they could have done so long ago. Instead, they've been calculating for quite awhile. This is a political decision, not the triumph of the American judicial system.
posted by Humanzee at 6:54 AM on November 14

I have to say that my gut is with Avenger here, but I see it more as necessary evil than disgusting sham.

I can't believe there's any way this trial goes ahead unless a conviction is a dead-lock certainty, and for the same reasons: it'd be political suicide. That said, I doubt it's possible he could ever truly be cleared, anyway, mainly for the reasons MattD lists: there are sixteen other layers of lawsuit that could be brought to bear until one of them gets a conviction. It'll be a mess no matter what, due to the torture and other mishandlings, but unless I'm way off base, I don't think this whole issue has much to do with KSM himself, anyway.

Obama (along with those of us who I think are like-minded on this) seems to want to create a legal process with some basic integrity, where accused terrorists can be tried fairly and held up to the same legal process as anyone else. This is a good thing.

In the KSM case, and in these other pending cases that have been irreparably mangled by their handling to date, I find it hard to believe a fair or honest trial is really possible. It's an unfixable problem, being handed a cup of scrambled eggs and asked to make them into a regular whole carton of eggs again.

So yeah, I think any KSM trial will be a travesty, but a necessary travesty. The point isn't to find him guilty, though, or to let him walk away, or really anything regarding this one man. The point is to do some messy groundwork to establish a fresh precedent, so that we have a fair and transparent process for dealing with future captured terrorists. That has to be the real point to all this.

Going forward, a clear justice mechanism is a lot better than six years of secret torture.
posted by rokusan at 7:39 AM on November 14 [2 favorites]

My suspicion has always been that KSM wasn't being waterboarded for more info about 9-11, but to get him to make a confession linking 9-11 to Iraq. Cheney didn't particularly care whether it was true or not, but needed cover for what they wanted to do all along, make a power grab for the Middle East and show the brown people what the US could do if it wanted to. Wasn't that the point of reverse-engineering the SERE techniques? Waterboarding was used precisely (by those we described as torturing our soldiers) to produce propaganda.

It might be a matter of Cheney believing his own propaganda or being 3X as clever as he should have been, and thus not taking "yes" for an answer. But the danger here isn't that torturing KSM will invalidate the evidence needed for a conviction, but that in closed session someone will argue convincingly that there's too much potential PR damage to the US to risk letting this all come out as part of the defense argument. But now that the trial has been announced, I don't think they can pull it back again.
posted by palancik at 12:01 PM on November 14 [2 favorites]

Unfortunately, I agree with palancik's assessment. If you're waterboarding someone 183 times, you're not trying to get information out of him, against his will - you're trying to get information into him, against his will. We need him, at this point, to be guilty, because innocence is too expensive to our country's pride.

There is no "clear justice mechanism" in holding someone for years in an illegal prison, tortuing them for months on end, and then, when it's politically expedient, holding what amounts to a mock trial. There's no way in hell that an honest trial, with actual, useful evidence, is possible here - and, yet, we somehow can't seem to simply admit that we screwed up. So, we'll go through the motions and either let this guy go because years of torture, abuse, and imprisonment have guaranteed that there's no useful evidence, or we'll push as hard as we can to use the flimsiest evidence possible to have this guy killed ASAP.

Either way, there's no going back. The world will watch, once again, a horrific spectacle of nationalist pride instead of true justice.
posted by FormlessOne at 3:07 PM on November 15