Former Bush DOJ Officials Back Holder on Trial of 9/11 Suspects

By Jeralyn, Section Terror Trials
Posted on Fri Nov 20, 2009 at 08:26:00 AM EST
Tags: Khalid Sheikh Mohammed, Eric Holder (all tags)

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James Comey and Jack Goldsmith, high-ranking Department of Justice officials under Bush, have an op-ed in the Washington Post defending Attorney General Eric Holder's decision to prosecute Khalid Sheikh Mohammed and four other detainees in federal criminal court instead of a military commission proceeding. The conclusion is fine:

But Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.

In reaching that correct assessment, however, there's a few statements I take issue with. They posit that Holder made the decision to keep the U.S.S. Cole detainees in a military proceeding not for the reasons he said (that the attack happened outside the U.S.) but because the case against them is weak and the chance of conviction is greater in a military commission trial. In other words, Holder forum-shopped (as, they say, Bush's DOJ did before him) and there's nothing wrong with that. I think when it's done hoping to skirt the requirement of proof beyond a reasonable doubt because you know you can't meet it, there's definitely something wrong with it.
[More...]

As to military commissions, they write that despite "relatively loose rules of evidence, their absence of a civilian jury and their restrictions on the ability to examine classified evidence used against them," military commissions only offer the Government "a "marginal advantage." Sorry, but those aren't the only disparities and even the revised commission procedures provide a big advantage towards conviction over a federal criminal trial -- and an unfair one.

They also predict Obama will continue with indefinite detentions of the Guantanamo detainees not charged with crimes, and they seem to have no problem with it:

It is also likely that the Justice Department will decide that many other terrorists at Guantanamo Bay will not be tried in civilian or military court but, rather, will be held under a military detention rationale more suitable to the circumstances of their cases.

"More suitable?" How is continued military detention ever suitable for someone who has never been charged with a crime? Or for someone a court has determined was unfairly declared by the Bush Administration to be an enemy combatant? Are they suggesting the Government will only indefinitely hold uncharged detainees who are guilty of something terrible, but we just couldn't prove it without their inadmissible statements made under torture? I don't believe for a minute those are the only ones who will be indefinitely detained, and I don't like giving the Justice Department or the military the sole discretion to make the call. "He's guilty and dangerous, we just can't prove it, so we're not going to try" should never be a license to imprison someone forever.

There's also a statement I find particularly grating, especially coming from lawyers:

The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed...

"Obviously guilty?" Did I miss the trial?

To sum up the authors' views: the procedural advantages of military commissions are only "potential" not real ones, and if such advantages do exist, they are "relatively unimportant," but KSM is "obviously guilty."

At least they got the ending right, so I'll reprint it again:

Holder's critics do not help their case by understating the criminal justice system's capacities, overstating the military system's virtues and bumper-stickering a reasonable decision.

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Former Bush DOJ Officials Back Holder on Trial of 9/11 Suspects | 28 comments (28 topical)

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Obama weighs in. (5.00 / 4) (#2)
by lentinel on Fri Nov 20, 2009 at 05:02:04 AM EST

There's also a statement I find particularly grating, especially coming from lawyers:
The potential procedural advantages of military commission trials are relatively unimportant with obviously guilty defendants such as Mohammed...
"Obviously guilty?" Did I miss the trial?

President Obama, also a lawyer, has also announced that professed Sept. 11 mastermind Khalid Sheikh Mohammed will be convicted and executed...

Obama went on to say that those offended by the legal privileges given to Mohammed ... won't find it "offensive at all when he's convicted and when the death penalty is applied to him."

In fairness, Obama went on to say that he hadn't said what he had just said, and that when he said that Mohammed would be convicted and executed he wasn't prejudging anything.....

Do we laugh or cry?

As BTD has repeatedly pointed out (5.00 / 0) (#8)
by gyrfalcon on Fri Nov 20, 2009 at 10:58:16 AM EST

KSM loudly and emphatically not just confessed but trumpeted his guilt in open court.

Just sayin'.


KSM confesses... (none / 0) (#20)
by lentinel on Fri Nov 20, 2009 at 05:11:06 PM EST

There is room for doubt about the accuracy of his confession. And it wasn't in "open court" - it was in a secret court in Gitmo.

Here's an article in Time Magazine as an example of the thinking of those who think that KSM might be mentally unstable and prone to exaggeration:

TIME

Another thing that I have read is that the confession was obtained after Mohammed was incarcerated in Guantanamo for three years.

For another take on the many confessions of KSM, see this link:

The Young Turks- Cenk Uygur and Ben Mankiewicz.

What I am suggesting is that we will get to see the evidence when a trial is held. Then we can make an informed opinion.
But government officials, in my opinion, have no business announcing their verdict and sentence on a defendant before the trial has even taken place. And when a lawyer does it - especially the President - it smacks of pandering and posturing. It makes me queasy. It doesn't feel right. It doesn't feel American imo.


: Well, I can't disagree with that (5.00 / 1) (#28)
by gyrfalcon on Fri Nov 20, 2009 at 11:05:16 PM EST

I'm the one who argued on another thread, after all, that my mistrust of the government on this whole thing is such that I would have no problem being a juror on this trial.
But I was honestly more bothered by Obama's pronouncement on the Henry Louis Gates incident than I am by this one. Though you're right, he shouldn't do it at all under any circumstances-- if he weren't pandering to make political points.

Rights to a speedy trial? (none / 0) (#1)
by Ben Masel on Fri Nov 20, 2009 at 01:35:19 AM EST

Do those heraded to the Federal Courts stand a chance of diksmissal for failure to bring timely prosecutions?

: Peter G replied to a comment of mine (none / 0) (#16)
by oculus on Fri Nov 20, 2009 at 12:31:23 PM EST

some time ago answering that question. Apparently in federal court criminal cases there is no statutory time limit for bringing an accused to trial. Of course, there is the Sixth Amendment to the U.S. Constitution.

It's One Thing (none / 0) (#3)
by The Maven on Fri Nov 20, 2009 at 08:44:07 AM EST

to engage in forum-shopping, if that is to mean trying to select a more favorable jurisdiction among courts at roughly the same level. It's entirely another -- and one I would hope we would all agree is unacceptable -- when it means selecting among proceedings at which the defendants have vastly different rights and for which radically lesser thresholds are required in order to obtain a conviction.

As many observers have noted, this system Holder has announced (undoubtedly with Obama's explicit blessing, as he would otherwise have been publicly rebuked long ago) is very clearly designed such that the detainees will only be accorded a level of "justice" that will be guaranteed to result in a guilty verdict. The government will never permit a defendant to be tried before a court, commission, or whatever, if there is any doubt that convictions will result. (Thus, it's fairly easy, albeit disingenuous, for Obama to sound so assured that KSM et al. will be found guilty.) This type of multi-tiered setup, complete with the prospect of indefinite detention without prospect of trial for some and assurances of continued detention post-trial, regardless of the outcome, for others, is abhorrent in a democracy and is part of the very essence of tyrrany -- i.e., a government of men and not of laws.

To this administration, just like the one before it, Equal Justice Under Law seems to be little more than four random words with no real meaning.

You know (none / 0) (#4)
by Steve M on Fri Nov 20, 2009 at 09:53:41 AM EST

we gave the Nazis a fair trial at Nuremberg but I don't think people went around pretending like Goering and Hess were innocent until proven guilty.

I am glad we are finally giving these guys some regular process, even though I agree with the criticism that we are forum-shopping in a serious way. But if the price of trying people like KSM in civilian courts is that we expect political leaders to suddenly start acting like they're all utterly innocent unless and until a jury says otherwise, then you know what, maybe I'm going to just line up with the Lindsey Grahams of the world because I find that preposterous.

The case is styled The United States of America v. Khalid Sheikh Mohammed. The United States is the sovereign bringing these terrorism charges in the first place. I do not expect the head of state to be agnostic about whether the guy is guilty! The presumption of innocence applies TO THE TRIAL ITSELF.

Just curious... (none / 0) (#6)
by lentinel on Fri Nov 20, 2009 at 10:41:19 AM EST

If this guy, Mohammed, is the "mastermind" of 9/11, why did we invade Afghanistan looking for OBL, the previously supposedly self-described mastermind?

I don't assume this guy is guilty, because I don't believe a goddam thing I read in the press.

I don't think anyone has the right, especially a lawyer, and especially the president - whose comments can serious infect the potential jury pool - to announce their verdict and sentence before a trial has been held.

But that's just me. People have been letting Obama off the hook since forever. His having made his little statement will slide on by.
Him and Biden make a good pair after all.


Gee, I dunno (none / 0) (#9)
by Steve M on Fri Nov 20, 2009 at 11:12:06 AM EST

maybe this whole bin Laden thing was just a ruse by the CIA. It's a mystery!

People are allowed to have opinions about someone's guilt or innocence in advance of a trial. That goes for OJ, KSM, whoever. You are allowed to have the opposite opinion and that's fine too!

But it's crazy to think that we can send the US military to a foreign country to catch the people we believe have done us harm, and then after they are caught we suddenly have to pretend we have no idea whether they're the right person or not. I wonder why I never see the police on TV announcing that they've arrested an innocent person.


Lawyers should be held to a higher standard. (none / 0) (#19)
by lentinel on Fri Nov 20, 2009 at 04:48:14 PM EST

No one has to pretend that Mohammed or anybody else is innocent.
It is simply that it is "grating" as Jeralyn says, or borderline unethical imo for a lawyer - in particular the President or the Attorney General - to announce their conclusions before a trial is held. It just stinks in my opinion. It's not like they were hoisting a few in a saloon with the guys and let it slip. They're government officials. There's a difference.


So the government (none / 0) (#21)
by Steve M on Fri Nov 20, 2009 at 05:17:49 PM EST

is supposed to act like they bring charges against people without any idea whether the charges are true or false?


The government can have all the ideas (5.00 / 1) (#22)
by oculus on Fri Nov 20, 2009 at 05:41:40 PM EST

it likes, and most likely does, as it issued the charges. Different than making public proclamations of guilt and likely death penalty sentence. Contaminating possible jury pool. I don't like it when either the prosecution or the defense does that.


I respectfully suggest (none / 0) (#23)
by Steve M on Fri Nov 20, 2009 at 06:04:28 PM EST

that in a political context like this, if you insist on civilian trials as well as public proclamations of neutrality by officials who are already taking significant heat just for ordering the trials in the first place, the outcome is going to be that you get no trials at all.

It's not like remaining silent is an option. Obama did not call a press conference to announce that the guy is guilty, someone asked him the question. Expecting him to respond by expressing agnosticism on the question of guilt is hopelessly unrealistic, in my view, and I refer you to the above paragraph.

I guess Obama should have taken the politically easy route and just let the guy rot in a hole forever. Can't win.


: He could have said, I cannot comment on (none / 0) (#27)
by oculus on Fri Nov 20, 2009 at 08:31:52 PM EST

a pending criminal prosecution.

Yeah Obama's going to pollute the jury pool (none / 0) (#24)
by Socraticsilence on Fri Nov 20, 2009 at 06:48:06 PM EST

not the whole death's of thousands thing-- seriously, its going to be interesting to see how they disqualify anyone who lost a friend, family member, co-worker in the 9-11 attacks- if we assume just normal social networking it could be a significant portion of the jury pool (assume every WTC victim know's 100 people- that's 300,000- first level contacts- 30 million second level), then we get to everyone indirectly effected and the crime hits everyone in the City- then you have the media playing the whole Bin Laden tapes thing- I just have a really hard time seeing how the president is significantly increasing Jury pool bias.


that is not correct (none / 0) (#7)
by Jeralyn on Fri Nov 20, 2009 at 10:51:59 AM EST

if it were, the Department of Justice would not say at the bottom of every press release announcing an Indictment,:

These charges are only allegations and the defendant is presumed innocent unless and until proven guilty.

Sure (none / 0) (#10)
by Steve M on Fri Nov 20, 2009 at 11:16:02 AM EST

they are presumed innocent as a matter of law. We all know this.

But that hardly means the Attorney General believes them to be innocent, or has no opinion as to their guilt or innocence. Of course the DOJ is bringing charges because they believe the defendant is guilty, they're not doing it for their health.

Let's see, we've had KSM in prison for something like 8 years, we've tortured the guy, we've apparently threatened harm to his family, and so on and so forth, and now people seriously expect the President of the United States to act like he has no clue whether the guy actually did the things his own Department of Justice is accusing him of? This is an unrealistic and quite silly expectation.


To me, the question is, should the President, (5.00 / 1) (#11)
by oculus on Fri Nov 20, 2009 at 11:37:10 AM EST

whose branch of government includes the prosecutorial agency, publicly state a person who has been detained, and charged, and is pending trial, is guilty. My answer: no.


If that is a consequence (5.00 / 0) (#12)
by Steve M on Fri Nov 20, 2009 at 11:49:57 AM EST

of putting these people in the civilian justice system then maybe I am against the civilian justice system after all.

It would be positively Kafkaesque for the President to act like he has no earthly idea whether Khalid Sheikh Mohammed is an enemy of America or not.

I do not think he should be irresponsible and demagogue the issue, but it would be crazy for him to act like he is agnostic on the question of guilt.


The President was never a prosecutor. (none / 0) (#13)
by oculus on Fri Nov 20, 2009 at 12:09:59 PM EST

But were you?


No I was not (none / 0) (#14)
by Steve M on Fri Nov 20, 2009 at 12:21:54 PM EST

but I did stay at a Holiday Inn Express last night!

None of the people being criticized here, Comey, Goldsmith, or Obama, are prosecutors either.

By the way, great great article on Hillary at vogue.com today. You probably didn't even know I read Vogue.


: Wonderful photo of Ms. Clinton on front page (none / 0) (#15)
by oculus on Fri Nov 20, 2009 at 12:27:04 PM EST

of NYT yesterday.
No, I didn't realize you read Vogue. I don't!

: Excerpt from Vogue article: (none / 0) (#18)
by oculus on Fri Nov 20, 2009 at 01:18:24 PM EST

"You could define the trip by what she didn't do," says Johnnie Carson, Assistant Secretary of State for the Bureau of African Affairs. "No sightseeing, no museums, no shopping."

Seriously, (none / 0) (#25)
by Socraticsilence on Fri Nov 20, 2009 at 06:49:53 PM EST

I hate to bring politics into this but the President would end up coming off like a Truther- "I have no idea whether Al Queda and its agents are responsible for 9-11 thats for a jury to decide."


presumptively, (none / 0) (#17)
by cpinva on Fri Nov 20, 2009 at 12:58:54 PM EST

that is not correct, if it were, the Department of Justice would not say at the bottom of every press release announcing an Indictment,:
These charges are only allegations and the defendant is presumed innocent unless and until proven guilty.

the state wouldn't be prepared to expend significant scarce, allocable resources, to try someone, if it didn't already believe they were guilty of the charges. form vs substance.

holder has already admitted (with obama's blessing), that these are show trials, for those who get any due process at all, and aren't just locked away forever without even that. even those who are aquitted will get locked away forever.

"constitution? we don't need no stinkin' constitution!"


Is having a trial for the (none / 0) (#5)
by coast on Fri Nov 20, 2009 at 10:08:35 AM EST

sake of just having a trial, which is what this is, really justice? Doesn't seem like it to me.

: Why have Nuremburg then (none / 0) (#26)
by Socraticsilence on Fri Nov 20, 2009 at 06:52:29 PM EST

for anyone but the low level officials who were eventually acquited- Heinrich et al were not going to be let off.