November 17, 2009

The Gurgling Confessor Goes to Trial

I admit I was surprised when the Obama Administration's Department of Justice announced that Khalid Sheikh Mohammed (among others) would be tried in a regular federal court in Manhattan for his role in the 9-11 plot. KSM, as he's known (which has always made him sound like a lite rock FM station), was captured in Pakistan in 2003, rendered around, and then was shipped to Guantanamo in 2006. I remember the timing pretty well because I watched George W. Bush's riveting speech on television in a breakfast room in Lyon, France. You may recall it yourself. W's impassioned plea was for immediate action on the Military Commissions Act, which incorporated a trial mechanism for the arrival of the "worst of the worst" from overseas dungeons, including the anticipated landfall of KSM in Cuba. Skeptics (I'm busted!) suggested that Bush's hurry-up had more to do with a couple of other factors, namely, the imminent midterm elections of 2006 and the exoneration clause (from any war crimes that might have been committed by, oh, the Bush Administration) helpful Republican lackeys (like Lindsey Graham) had stuck in the law. So George, whose own vanilla beans were caught in the ice cream maker of justice, was adamant that the bill get passed fast, because the bad guys were due to arrive in Cuba at any moment! And the really bad guys were due to arrive in Washington, D.C. in January!

Not to worry, W. The lame-o Democrats (including erstwhile Republican Arlen Specter, who admitted he was voting for an unconstitutional bill) rolled over, as usual, and passed Bush's get-out-of-jail free card just as they were ordered. No filibuster, no obstruction, not a whimper. Then, mysteriously, the urgency seemed to disappear. Hell, KSM could rot for all W cared. Let the next guy figure it out.

Which Eric Holder did. The reason I'm surprised by the choice of venue is that KSM was waterboarded, by CIA count, 183 times. I thought this pretty much guaranteed KSM immunity from actual trial; he would never set foot outside of prison, of course, but I thought the "preventive detention" doctrine, announced by our Constitutional Law Professor-President as an alternative to what we used to call "due process," sort of had KSM in mind. Otherwise...

Otherwise, KSM (who's gained quite a reputation as a loose cannon) is going to use these last public days of his life, and the district federal court, as a forum for anti-American raving and for a detailed description of the tortures and mistreatment worked upon him. Since he's apparently confessed to everything, up to and including the Lindbergh kidnapping and the Kennedy assassination, his lawyer will have to introduce evidence of coercion in order to zealously represent him, as bar rules require. Being waterboarded 183 times over about a month's period no doubt qualifies as coercion.

All rather odd. I'm well past the point where I expect Obama or his justice department to proceed on the basis of the Bill of Rights simply because, you know, we're a nation of laws. That ship has sailed. So something else is up. Partly, I'm sure, it's the politics: KSM worked his evil in Manhattan, so that's where he should be tried. His lawyer may move for a change of venue (just to go through the motion, so to speak), but he's counting on losing. Would KSM rather be tried in Georgia or Alabama? Thought not. But I don't believe that KSM is actually going to be tried. He's admitted everything already, and I suspect he's going to dismiss his lawyer, plead guilty, and confine his theatrics to that moment before sentencing when the judge asks him, "Is there anything you wish to say?"

Then everyone will get an earful. What I can't imagine is that Holder's DoJ is actually going to set up a forum where the United States, while laudably affording a despised terrorist his day in court, is dragged through the mud for days on end while its torture methods are described in gruesome, unending detail as "catnip" for the cable news shows to display and analyze, ad infinitum. Obama, after all, encouraged Congress to pass an amendment to the Freedom of Information Act allowing the Secretary of Defense, in his unfettered discretion, to withhold any photo of detainee abuse where he thinks disclosure "might endanger U.S. armed services personnel," thus putting an end to a successful FOIA case brought by the ACLU seeking the release of about 2,000 photos of various acts of torture and abuse. And now Holder is going to allow an al-Qaeda member to testify, at length, about waterboarding and rendition, and flights in the belly of a C-5 while chained to the floor, and hypothermia, and sleep deprivation, and getting stuck in a coffin box, and all the rest of it? How will that one play in Kandahar?

There is something we haven't been told yet. I will believe this trial when KSM takes the stand, under oath, and begins to rant and rave.

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