The burden of proof

I noted recently that the military prosecutors at Guantanamo, faced at last with the actual prospect of trying Khalid Sheikh Mohammed, alleged mastermind of the 9/11 attacks, have sought the help of the FBI in enhancing and corroborating the evidence against him. The concern of the military, even in such a favorable forum as the kangaroo courts of the Military Commissions Act, is that Khalid was under the jurisdiction of the CIA for almost all of his pre-Guantanamo detention after his capture in Pakistan in March, 2003. During his detention, he confessed to involvement in practically all unsolved crimes of the past century, possibly including the Lindbergh kidnapping, but certainly the murder of Daniel Pearl, the Bojinka plot (Phillipines multiple-plane hijacking), the Millenium Conspiracy (foiled at the Canadian border by an alert guard in 2000), the shoe bombing plot, and the 1993 World Trade Center bombing. He may have been in on the O.J. Simpson hotel room heist of a couple of months back. It's all documented; he copped to it. And given the many restraints on an effective defense, and admissibility of hearsay evidence even when such evidence is extorted through torture or compulsion, what more could they possibly need?

Well - it seems they're nervous. The CIA agents know what they did, and they're very concerned it's all going to come out when they try Khalid. So maybe what they'll try to do is to convict him without using his confessions. Here's an interesting sidebar to the question at hand, one I picked up while studying constitutional law. The doctrine of "fruit of the poisonous tree," which bars use of evidence obtained through violations of the civil or constitutional rights of the defendant (greatly expanded during the years of the Warren court), is based, in the case of extorted confessions, on the 5th Amendment. Interesting, eh? The 5th Amendment declares that a person may not be compelled to be a witness against himself. So if you confine him to an incline board, cover his face with plastic, and start pouring water on his mouth, and then ask him questions about how often he hung out with Osama bin Laden, you might run afoul of this doctrine because you're compelling him to testify contrary to his own interests. Oh sure, I know. Why worry about coddling terrorists, especially after they've just confessed? "Off with their heads!" cried the Queen of Hearts.

So that's an interesting problem, and I wouldn't fall out of my chair if the trial of Khalid was delayed until after a new President is installed in January, 2009. But it does raise another interesting point, which I might limn briefly. If you care to improve your citizenship in our participatory democracy, I commend to you the official government publication "Report of the 9/11 Commission" (short title). In paper, inexpensive, available in lots of places. You will be interested to see just how much the entire case against Osama bin Laden, Mohammed Atef and Ayman al-Zawahiri rests on Khalid's "interviews" with the CIA. Of course, in the staff reports of the Commission, no context is given for Khalid's statements. You could get the general idea that he's sitting with a George Clooney-type operative at a riverside cafe in Cairo instead of...where he really was. But the main narrative of the "back story" for the 9-11 attacks, the meetings with Osama and the other plotters, the recruitment of the hijackers, the changes in the plot as it was developed, etc. -- this is almost all KSM data. When you think about it, it starts reading like a kid's "term paper" in the 4th grade, when you're up against the deadline and you know you've only read one chapter from one book, but you're trying to use the footnotes and bibliography to flesh out your "authorities," but it still sounds like, you know, a rehash of one part of one book. "According to KSM," the report will say; "KSM then stated that he met with bin Laden and Atef in Afghanistan," it goes on; "KSM also stated that..." it concludes.

So then you think: wait a minute! The military commissions lawyers have confessions from KSM that they're concerned about using in his own trial under the exclusionary rule, because they might be ruled unreliable or unbelievable; and yet these very same confessions constitute the generally accepted, official version of the 9/11 attacks. In moments of dark doubt, which I know many of us share, I sometimes think that George W. Bush's apparent indifference to capturing bin Laden might not just reflect the military difficulty of the operation. I think he likes the story the way it's been told, and it's not that I buy into any of the 9/11 government conspiracy thinking. I don't. But torturing KSM in the frenzy after 9/11, before we knew about the CIA's black sites and their "enhanced interrogation techniques," was one thing. A capture of bin Laden, where such techniques probably could not now be applied because of the laser-like focus of the world on America's actions, might mean that bin Laden would be free from coercion, and would tell his version of the story in his own terms. And no telling where that might lead.