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    The United States v. Khalid Shaikh Mohammed, et al

    By Barth on Sat, 11/14/2009 - 3:39pm |
    There were so many other things that seemed to be good subjects for a post this week. Then this jumped out of today's New York Times :

    Margit Arias-Kastell lost her husband, Adam Arias, in Tower 2. She, too, could not countenance the prospect of the suspects being defended by lawyers in a court in her city. She was among scores of relatives who had signed a letter opposing regular criminal trials for them.

    "It's totally unfair," she said. "Why do we have to constantly relive this? When do we get to be at peace? They should be hung."


    and everything else that seemed worth writing about was washed away by the answer to that question.     The answer to the question is not a difficult one, but bears repetition and, sadly, needs explication. The answer is that we are the United States of America.

    In the United States of America (and most common law countries which enjoy the legal system developed after Magna Carta was forced upon King John in the 13th century) the victims of and witnesses to the most horrible crimes are forced to relive those moments every day in courts all over this country and the rest of the common law countries. Not once, not twice, but often many times they are required to tell strangers about the horrible traumatic things they saw or that happened to them and, at some point, to say those things with the person they believe is responsible for that crime staring right at them, with a lawyer who is entitled to ask them questions to try to show that they were wrong---that's not what happened, or this is not the person who did that to you.

    The hero of so many conservatives, Justice Antonin Scalia has, indeed, been extraordinarily protective of this constitutional right of a criminal defendant to confront his or her accusers. To Justice Scalia, and a majority of the Supreme Court, many modern devices to ameliorate the effects of this rule on the victims of crimes, or to prevent a defendant from benefiting from conduct which prevents the witness from testifying, violate the Constitution:

    He says that while

    the [Confrontation]Clause's ultimate goal is to ensure reliability of evidence ... [i]t commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.


    Crawford v. Washington, 541 U.S. 36 (2004).

    The victims and witnesses to the horrible events of September 11, 2001 will never stop reliving them, but to force them to do so in public, in a court of law is not an easy thing to contemplate. But our law does not have a special rule for cases that seem particularly horrible to allow that the person charged with its commission can be hanged for that reason alone. The crime of which you or a loved one is the victim is the worst one ever, yet the defendants in those cases get to force those witnesses to testify every day.

    Neither, contrary to what even experienced lawyers who know better have tried to blather all over tv for a day or so, do we have different rules applicable to citizens than the ones which applies to non-citizens. Peter King once ran for Attorney General of New York, and Joseph Lieberman was once the Attorney General of Connecticut. Somehow, though, this Lieberman (similar to a comment I heard from King) can 

    say with a straight face that:

    "The terrorists who planned, participated in and aided the September 11, 2001, attacks are war criminals, not common criminals. Not only are these individuals not common criminals but war criminals, they are also not American citizens entitled to all the constitutional rights American citizens have in our federal courts"


    War criminals? These are people fighting a "war"? No. These people are conspirators, not warriors. Wars, for better or worse, are fought by people wearing the uniform of a nation which feels aggrieved. Other times, people fight against the police and military of a government which they believe to be responsible for oppressing them. Flying airplanes into an office building where people are going to work, for an import-export company, a law firm, a stock broker, a government agency watching over stockbrokers, an insurance company, a newsstand, the guy who shines shoes, or sells flowers or tickets to a Broadway show or plays the piano in a lobby of the bank on the southeast corner of the Trade Center, is not an act of war. It is murder. The people who did it, who planned it, who paid for it and who assisted those who did all of that, are not anyone's war hero or martyr to any political cause as an enemy of our country. They are cowards, and they are criminals.

    Can they get a fair trial? I cannot see why not. We all know what happened that day. That is not the issue. The question will be whether it can be established beyond a reasonable doubt that these defendants committed acts in furtherance of this crime. That somebody bragged that he was the mastermind, while claiming to being a prisoner of war, does not establish that he was responsible and I am sure that a good judge can find twelve jurors and a few alternates who will listen to the evidence and draw reasonable conclusions from it. As has often been noted, if you were convinced on November 23, 1963 as to who killed President Kennedy, by the same date a year later you could easily have found a jury that needed evidence to prove it was Lee Oswald.

    Will some of the evidence be suppressed because of how it was obtained? Sure. That's what makes us the country we are. Politicians who utter the word "Miranda" with a sneer either do not know what they are talking about
    or are simply trying to curry favor with people who do not value what this country is all about. It was a Republican former Governor of California, after all, who wrote these words on behalf of the Supreme Court:

    The ... practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.


    Miranda v. Arizona, 384 U.S. 436, 458 (1966).

    Many people, including the guy posting as Barth, believe that courts have misconstrued the requirements of Miranda and the like and suppressed statements which ought to be admissible evidence for a jury to accept or reject as the evidence directs, but we can be reasonably confident that only those statements which were unquestionably obtained by means which offend our Constitution will be excluded in this trial and, frankly, the case law that develops from this litigation will probably move the courts to a more appropriate place for use in other cases to come.

    But nobody can keep practicing law in our courts, or prosecuting criminal cases if there are crimes which our courts are incapable of resolving. The jury system does not always work as well as it might: jurors, as with the rest of the public, are increasingly stupid and unable to understand some of the simplest concepts which is why, it seems, we often see acquittals in financial fraud cases, where some degree of complexity exists.

    That, no doubt, will not happen here. The Attorney General of the United States happens to be a career prosecutor. He knows how to evaluate a case as do the many prosecutors more directly responsible for this trial. Hours after the Trade Center, my own workplace for many years, fell, I heard jurors from the trial for the 1993 bombing explain on the radio why, based on what they learned from that experience, there was no question that Al Qaeda was responsible, at a time when the rest of us seemed confused. That is what good prosecutors do, and what is likely to happen in this trial. New York City can handle it. Of that there should be no question. If it cannot, we are in bigger trouble than can be resolved by determining where to try this case.

    One does not have to be a supporter of the death penalty to shed not a tear or lose a moment of sleep, if, after such a trial, these people are unanimously found to be guilty beyond a reasonable doubt and are thereafter executed. And if and when that occurs, we can hold our heads up quite high and tell the rest of the world that that is who we are.

    -----

    Since other obligations generally require that one full post appear under this name, a few other thoughts, which might have been more carefully made had not this KSM thing happened, should at least be listed here with the hope that someone else can fill in the blanks or might still be worth writing about a week hence.

    For instance, there is this foolish debate about the supposed failures of the Obama administration or the more important one, about how a president goes about deciding what to do at a critical moment in a war far from our shores, which Rachel Maddow (naturally) explained well with the help of Gordon Goldstein. 

    There really is an even more significant and truly overarching issue which strikes me every day particularly when I hear Regina Spektor sing, as she did in a movie over the summer which I still have not seen

    Power to the people 
    We don't want it 
    We want pleasure 
    And the TVs try to rape us 
    And I guess that they're succeeding


    The issues which were important last year, still are today. You cannot expect to wake up every four years, wear a button, even go to a rally, and push a lever, then walk away and think that if your guy wins all will be well. That's NOT how it works, as Regina might say. Let's talk about that next week.

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