KSM on trial in NYC: Part 2

Attorney General Eric Holder testified today before a Senate committee about his decision to try professed 9/11 mastermind Khalid Sheikh Mohammed and four other jihadists in a federal court in New York City rather than through the military commission system. His words did not resolve any of the questions I raised about this move when he announced it last week. On the contrary, I’d say he made things worse.

MY QUESTION: Is the administration prepared to have KSM…acquitted because jurors are uncomfortable with some interrogation techniques used on him?

WHAT HOLDER SAID: “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.”

Sen. Herb Kohl, the Wisconsin Democrat, called this “an interesting point of view.” What he meant was: If we’re going to put these terrorists through civilian trials in order to prove something about America and our values to “the world,” should our top law-enforcement official be prejudging the outcome in this way? (President Obama, a lawyer and former constitutional law professor, made the same mistake today in an interview in China.)

MY QUESTION: If [KSM is] acquitted, will he be allowed after the court is adjourned to walk out into the streets in Manhattan like any other free man? If not, on what grounds would he be detained — and would these be legal?

WHAT HOLDER SAID (via The Weekly Standard): “Holder sought to soothe critics by explaining the administration has already determined that if something did go wrong, and a mistrial or acquittal happened, it would ‘not allow release into this country of anyone who was deemed dangerous.’ KSM and others would remain detained as enemy combatants, Holder said, in that case.”

Again, underneath the pretense of showing off American justice lies a premeditated willingness to bend the rules if necessary. All of this could be avoided through a military commission trial — a perfectly legal tool which Holder is using with the bombers of the USS Cole. (His line about having “the opportunity to present strongest evidence” in a civilian court versus a military one is also bogus on its face given the rules of evidence for each venue.)

Let’s just imagine the spectacle, not to mention the hit to America’s image, if KSM is somehow acquitted (again, this has to be considered a possibility when a trial is held) and then is detained on war-related charges (i.e. enemy combatant status). And all this after the administration made a big show of opting out of trying him in a military commission.

The plan seems to be: Try to win some PR points; if we end losing them later, we’re no worse off.

I disagree. The term “show trial” has gotten thrown around in connection with this story, and that’s a grave accusation to level at a government in a democracy. But it’s difficult to argue otherwise when the president and AG are telling the international public and the U.S. Congress, respectively, that the “defendant” will definitely be convicted and executed — and that, even if he isn’t, he won’t be a free man.

The administration isn’t bosltering democracy, justice and the rule of law in this case. It’s debasing them.

33 comments Add your comment

Road Scholar

November 18th, 2009
6:18 pm

Let him go on the streets of NY. I wonder how long he’ll last!

Heck, if what you said about your interpretation of what Pres Obama said today in China is correct, then pick 12 conservatives for the jury. Conservatives do not listen to what Obama says, and if they did, they’ll claim the opposite!


November 18th, 2009
6:37 pm

You failed to ask the most basic question. On what charges will he arraigned? The answer to this question forms the base for the answer to your questions.

I will suggest he will be charged with the Daniel Pearl murder.


November 18th, 2009
6:45 pm

Not to mention Eric Holder’s ex law firm.

Win or lose, they make Millions.

Ragnar Danneskjöld

November 18th, 2009
9:09 pm

After such recent travesties as Kelo and the ridiculous Kennedy v Louisiana, it is an unfair leap to accuse the Attorney General of debasing law. I’d say he is playing to the lowest common denominator. Leftism is all about doing what feels good, not thinking through the unanticipated consequences.

Elephant Whip

November 18th, 2009
10:06 pm

Uh…facts will be presented showing his connection to the events of 911 (how else did they find out about him?) and he will be convicted as a conspirator/accomplice.

It’s kind of like the Brian Nichols trial. There was no way he would not be convicted. Yes, he was entitled to the judicial process, but the facts were overwhelming. Sometimes, even under the standards of highest scrutiny, a case can be a slam-dunk.

On a side note, however, the case will not be held in New York. The defendants will file for a change of venue due to the impossibility of finding an impartial jury unaffected by the events of 911. So don’t worry about New York City jurors.

Finally: so many people discredit their fellow citizens by claiming juries are stupid and irrational. Juries actually very often make the right decision. That is why unreasonable outcomes are so sensationalized: e.g. OJ, etc. They are pretty rare.

Elephant Whip

November 18th, 2009
10:12 pm

One more thing: the completely improbable, but worst-case-scenario in this situation is a mistrial, followed by a retrial. Whereas you might, in the vast realm of possibility, get one juror (or even, speculatively, two) that wants to acquit, that juror must convince all the other jurors for an acquittal. The decision must be unanimous for guilt or unanimous for acquittal or it’s a hung jury and the case can be retried.


November 18th, 2009
11:47 pm

“MY QUESTION: If [KSM is] acquitted, will he be allowed after the court is adjourned to walk out into the streets in Manhattan like any other free man?” Yep, just like any other free man. It’s what makes America unique. Kyle, just keep on fearing, it’s what you do often and you do it best. BTW, fear didn’t make this country great, courage did. Try showing some next column.

Sunshine and Thunder

November 19th, 2009
2:47 am

AndifHe’sAcquitted? :

Courage? Is stupidity an act of courage? Would stupid men have been called courageous at Valley Forge? Yeah, let’s let this thug go in the streets of Manahattan (where the Republican idiot Boomberg has confiscated all weapons) and let’s remember that he wants to die as he kills as many of your and my children as he can. Yeah, that’s real smart. Courage? I tell you what, you be brave and I’ll be smart and let’s see who wins the gold medal. Idiot.


November 19th, 2009
7:30 am


I’ve been saying the same thing.

If Holder and Obama can’t keep their mouths shut, we’re gonna need a venue outside the U.S.

If a mistrial or acquittal does happen, I’m all for releasing them from 30,000 feet without a parachute.

This administration has made one stupid move after another. This is, by far, worst.

They look more incompetent with each passing day. In the past, I’ve said that “I was embarrassed FOR them….now I’m embarrassed BY them.

When will it end?


November 19th, 2009
7:38 am

And now that KSM and his ilk will be given ‘the right to remain silent’, you’ve effectively denied the military any way to interrogate any new enemy combatants captured on the battlefield. This is an untenable position and this politically-correct stunt from the hope & change crowd will cripple intelligence gathering going forth.

kayaker 71

November 19th, 2009
8:33 am

What a fiasco. There has never, ever, been an enemy combatent tried in an American civil court. Why start now? The trial will cost an already strapped state about 100M of tax payer dollars. All it takes is one person on the jury to have doubts about the proceedings and then we have a hung jury. The judge in the case decides what evidence will be presented. Much of the evidence obtained was done so by waterboarding. This very well may not be eligible for presentation in court. This gives these animals an opportunity to have a public forum to bash our country, not far from where the crime occurred.
What is Holder thinking, or is he? A military tribunal is just as effective or more so. It cuts costs, comes to an already decided outcome , can be held outside the US and is accepted by most countries as a legitiment way of trying these thugs. What’s the problem?

Kyle Wingfield

November 19th, 2009
8:35 am

AndifHe’sAcquitted: Could I trouble you to actually read the post? My whole point was that Holder has said KSM *wouldn’t* be released if he were to be acquitted. So maybe Holder’s just a big fear monger like me…or maybe your notion of “courage” is misplaced.


November 19th, 2009
8:45 am

All this is leading up to a mushroom cloud over New York. Eric Holder is a bigot. He is an affirmative action lawyer. So it does not matter is he is smart or not. The system is designed to make him successful–even if he fails.


November 19th, 2009
8:50 am

Can’t believe what I’m hearing from our Congressmen. That our American Justice system must be so inadequate that it can’t be trusted to preside over this case. The same thing I’m hearing from most of these posts. I guess these will be the same people that will question our Justice system the next time a crazed white person kills a minority in a low-income area and riots are brewing? I don’t think so!!!

Repukes and DummyCrats are ALL Scum

November 19th, 2009
8:52 am

Gee, if the guv cannot prove this guy guilty in a court of law, then one must as what the hell the guv has been doing lo these last 8 long years, chasing their tails? The Bush Clowns were engaged in a massive PR campaign hyping the terror threat against America when they should have been collecting valid evidence against this guy and his ilk. Our combat power was squandered in Iraq, Afghanistan was allowed to slowly grow into an out of control war against the local population, and the neo con scum enjoyed torturing our prisoners. Given the torture of Muslim prisoners in Iraq and else where by the neoconvict scum, is it any wonder that the Muslims killed guys like Daniel Pearl? He may very well have been an innocent do gooder, but given the crimes his countries (Israel and America) were committing against Muslims, he was doomed from the word go. Dropping 500 pound bombs on huts, villages, and groups of people because there might be a terrorist in their mists is not the way America should operate. That is the way of the bully and the coward, but then again, the neo con scum were calling the shots, and I guess the description fits. Israel still operates roving death squads in the Gaza, picking up teenagers for torture and summary execution, as they have for the last 25 years. The old rule still applies, what goes around comes around. The oil backing of the dollar is coming to an end, and AmeriKa will pay a high price for its crimes against Arabs and Muslims, as they will determine the world reserve currency of the future. It will not be the dollar. You can thank the neocon scum for that.

Kick Me

November 19th, 2009
8:54 am

Kyle, as a point of debate I think it is reasonable to contend that to insist on a military trial in order to maximize the possibility of a favorable outcome demonstrates a lack of faith in the American system of justice. Isn’t it unthinkable that an American jury could acquit the 9/11 mastermind assuming there is reasonable evidence to convict him?


November 19th, 2009
9:13 am

@ kayaker 71 why would he be tried in a militray tribunal when his acts were against civilians and the hijacking of a two commercial airlines (which are covered by the FEDS)? Everything he is being charged with is related to 9/11, I will give you a hint. That preceded everything else and was against civilians. So tell me where the military would have jurisdiction over this case?


November 19th, 2009
9:32 am

So, by way of his attacking civilians, we should be according terrorists the same rights we would give civilians? The terrorists that attacked the Cole will be tried by military tribunal, so it would seem to be even more advantageous for future terrorists to bypass the military and go straight for the populace.

This is a huge Pandora’s Box this naive administration has opened up.


November 19th, 2009
9:46 am

@ Ward you make an excellent point. However, he is not a prisoner of war as set by the Geneva convention. He does not qualify for that exemption. He has a better chance of being put to death in civilian court than a military tribunal anyway. I think this was the best option for the People of New York and the world. To give him status as a prisoner of war is too good for this coward. I would rather them house him in general population at Rikers during his trial. I guarantee he will not make the first trial date.

David Axelfraud

November 19th, 2009
9:47 am

According to American law, anyone who goes on trial is innocent until proven guilty. So, I am guessing that Obama and Holder believe that KSM is innocent.

This could be the final nail into this administrations coffin.

David Axelfraud

November 19th, 2009
9:49 am

Road Scholar, KSM would do fine in NYC because NYers are against the death penalty. All new yorkers would do is name call and snub their noses at him. I could just see Keith Olberman pointing at him from atop the NBC building because he fears the backlash from Muslims.

Elephant Whip

November 19th, 2009
9:59 am


Go back to high school Goverment class. The prosecutor does not presume the defendant is not guilty. The prosecutor (Holder in this case) usually knows, or is almost 100% certain, that the defendant is guilty. That’s why they prosecute.

The jury is the only group that presumes the defendant is not guilty (and, although the judge tells them to presume innocence, the jury sometimes has trouble even making the presumption). That presumption can be overcome with evidence and the evidence in this case is overwhelming.


November 19th, 2009
10:01 am

@ David Axelbum do you wife know that you are blogging again? Did you call and ask her permission? Get offline until you do so!


November 19th, 2009
10:03 am

Why are people so scared? It is editorials like this that I have great disdain for given total disregard of the facts and the reality of the situation.

Let’s say that he is acquitted. He can still be held under the existing laws (you know the ones that our previous president said he had) to detain him.

In the nuclear option (in the extremely remote case nothing works) KSM will have to be deported. There is NOT a country in the WORLD that will process the necessary paperwork to take him. Therefore we can detain KSM indefinitely (which we are doing now anyway) given the fact that there is no country that will take him.

If the argument to not having this trial is based upon the possibility of KSM “walking the streets of NYC on acquittal” then that is not a good argument because it is just not possible.

Come up with some better talking points. The fear-mongering is getting old and stale.

Elephant Whip

November 19th, 2009
10:07 am


You’re naive if you think that some people should have a fair trial and some should not. If anything, this trial will be such a strong case that critics will be saying that is was a show trial and the terrorist was already convicted before setting foot in court.

If some people get a fair trial and some do not, who will be the arbiter of that decision and why should you trust that decision maker? And if the wrong person/administration gets that kind of power, they might decide that YOU do not deserve a fair trial.

Kyle Wingfield

November 19th, 2009
10:29 am

Mark: Either you’re not reading what I’m writing, or I’m not making myself clear. Of course the administration would never let KSM walk the streets of New York after an acquittal…that is why I asked the question, to point out that the administration isn’t really doing what it’s trying to get credit for doing.

You write: “He can still be held under the existing laws…to detain him.” And which laws are those? Civilian or military? Holder cited KSM’s enemy combatant status. Is this a civilian or military status? And does it relate to civilian or military law?

The point is that the Obama administration is trying to win the approval of its political base by approaching this differently than Bush did, but without actually risking the potential consequences that this action presents. You can’t have it both ways and then talk about “American justice” and “courage” and “fear mongering” by those who point out that Holder is making a false distinction, one that has nothing to do with justice and everything to do with politics.

That imo is what is getting “old and stale” after just 10 months.


November 19th, 2009
10:49 am


OK, now I think I understand your point a bit better. I can agree that this trial has very little to do about “justice” (since KSM can never be freed anyway) and has everything to do about politics. Actually, I think it was quite a clever maneuver for the Obama administration.

Days after the inauguration, Obama said that he wouldn’t hold hearings or investigate the actions of the previous administration regarding waterboarding/torture/etc. So I just see this trial as a way to expose those actions in a public forum without actually “investigating” the previous administration (as well as hopefully building up some international goodwill along the way).

The only risk is embarrassment of an acquittal (in which the administration would probably not be able to recover from). However, there is not a risk of KSM ever being released from US custody.


November 19th, 2009
11:05 am

Kyle, Mark gets your point however I do not. Please tell me what KSM has done to deserve being tried in a military tribunal? He killed civilians and hijacked four planes, neither of these crimes are covered by military tribunals! Isn’t he being tried for the attacks on 9/11 and nothing before nor after that? He was the “alledged” mastermind of this and there is doubt out courts system can handle such a case?

Kyle Wingfield

November 19th, 2009
11:23 am

Gregg, it all depends on whether you view 9/11 as an act of war — as did President Bush, as did the members of Congress at the time, as did the United Nations (implicitly in acknowledging, in Resolution 1368, passed Sept. 12, 2001, that the U.S. had the right to react militarily to the perpetrators of the attacks), and as did al Qaeda and KSM themselves — or as the legal and moral equivalent of any murder committed any day of the year.

If it was an act of war, and I believe it was, then of course it’s appropriate to use military tribunals. The ability of the civilian courts to “handle” the case has nothing, zero, zilch to do with whether this was the right decision.

This decision was purely political, and that is a terrible basis for a decision such as this one to be made. The administration deserves every bit of criticism it gets for politicizing justice in this case. That is my point.


November 19th, 2009
1:28 pm

Kyle, your point is well heeded however as you say “President Bush, as did the members of Congress at the time, as did the United Nations (implicitly in acknowledging, in Resolution 1368, passed Sept. 12, 2001″. This was the day after the attack. This was the prelude to the supposed “war on terrorism”. I don’t believe this guy deserves a military tribunal as he was and is a coward that attack innocent civilians.
I do not believe everything that is done is based on political agends. And as far as I am concerned AG Holder has already broken and differed in opinion with the President. I think this trial is in the right place. Then everyone here who supports terrorism should also be tried in a military tribunal?

Kyle Wingfield

November 19th, 2009
1:41 pm

Gregg: So Pearl Harbor wasn’t an act of war? After all, it was just the prelude to World War II…


November 19th, 2009
1:46 pm

Kyle your point is taken also they attacked a military base which is a different scenario entirely. inIn this one they attacked a civilian owned building and used commercial airlines to do so. Also, we went to war with a country not a select group of indiviuals. So there is a difference.

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