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Can KSM Get a Fair Trial?
www.muslm.net / AP Photo
A GOP lawmaker took to the House floor to say Bloomberg risks the safety of his daughter by trying Khalid Sheikh Mohammed in NYC. Andrew Cohen on what the Timothy McVeigh trial teaches about bringing mass murder to court.
Echoing back from the government’s announcement last Friday that Khalid Sheikh Mohammed would be coming to New York City for a civilian trial was the sound of fierce public debate over whether the biggest murder case in American history would be held in Manhattan after all. Constitutionally speaking, how in the world can the most important terrorist America has captured since September 11, 2001, get an “impartial” trial blocks from where the Twin Towers fell?
Article III of the Constitution and the Sixth Amendment both tell us that federal criminal trials like Mohammed’s are to be held in the state and district “wherein the crime shall have been committed.” So New York (the location of the World Trade Center); Pennsylvania (where Flight 93 met its end), and; Virginia (where Flight 77 flew into the Pentagon) were the three options available to federal authorities. That they chose the Southern District of New York is no great surprise.
By the time the indictment comes out, no one in history will have ever faced as many murder counts relating to the most televised mass death in the history of the world.
It would be great if that ended the discussion. But the law is rarely that simple. The Supreme Court has long held that the due process clause of the Fifth Amendment, which guarantees fundamental fairness at trial, can trump the trial locations provided for by the Sixth Amendment and Article III. And the justice system has created “change of venue” motions for cases, like this one, where the conflict between the government’s interest in seeing trials where crimes occur and a defendant’s interest in not getting railroaded by a community.
Unless Mohammed represents himself—he tried to during his tribunal case down at Guantanamo Bay, Cuba—we almost certainly will see a “change of venue” request by the attorneys selected to represent the man the New York tabloids had long labeled the Face of Evil. These lawyers will be able to point to millions of pieces of evidence suggesting that pre-trial prejudice, bias, and prejudgment against Mohammed is persistent, profound, and almost primal in its nature. It’s been a long time since a country went to war over a crime but America launched two wars in the wake of Mohammed’s alleged crime.
Prosecutors won’t be able to deny this argument. But they will be able to argue that Mohammed’s attorneys are proving too much when they talk about the pervasive publicity surrounding the 9/11 attacks and their aftermath. The feds will say that potential jurors in Washington or Pennsylvania or anywhere else the Mohammed trial would end up—like Albany, New York, or Scranton, Pennsylvania—would have virtually the same prejudices against the confessed 9/11 planner as do their New York City counterparts. It’s a national crime, the feds will say, with massive national interest. And, they’ll argue, he’s got to be tried in some court somewhere.
Because the terror attacks were an unprecedented crime, the United States v. Mohammed will be an unprecedented case. No one in American legal history has ever been held as an enemy combatant, tortured, made incriminating statements before a military tribunal, and then been transferred stateside for civilian trial. By the time the indictment comes out, no one in history will have ever faced as many murder counts relating to the most televised mass death in the history of the world. Judging venue will thus be only one of the first challenges the federal courts must meet in ensuring an orderly, fair trial.
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Paul Schrodt is a writer living in New York City. He has contributed to New York magazine, Radar, and Esquire.com.
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camper
A change of venue will do nothing. The only place a jury could be found ,that did not watch the towers come down, would be in a grade school. Besides the man is going to commit suicide. He would rather die then let anyone else take credit for his lifes work.
FCBarca
The assumption, of course, is that he's guilty before being proven of such...Kinda goes against the 'American way'.
Personally, little of what W did whether it was terrorizing the middle east or scaring Americans at home gave me much confidence that anything that administration did or said was remotely truthful.
I have no idea if this guy is guilty, of anything...Yet to assume he is before even hearing/viewing evidence is indicative of a culture that continues to play the role of a parrot...Regurgitating what they see/hear rather than making informed conclusions based on FACTS & evidence...Not conjecture and emotional recounts of the towers.
Presumed innocent until proven guilty...Learn it, live it
Picachu
Welcome to the Fox News Nation. We scream about the constitution if we want to portray democrats as trampling it - but when it comes to pushing the neo-con agenda we walk all over it.
crypto
I think the attorney general accidently told the story while being questioned by the senate. He said no one should worry about the N Y trial, "if by some fluke these guys should get off, they will not be turned loose.....in this country." Now I wonder where they WOULD be turned loose. Regardless I'm betting not one of them will ever see the death penalty.
camper
Maybe the Dingo masterminded the plan to fly airliners into the World Trade Centers. Maybe Khalid Sheikh Mohammed is just trying to horn in on Mohammed Atta's virgin gig in paridise. Maybe he was the mastermind as he claims. Nothing changes Obamas team is tossing him to the wolves.
camper
sorry I forgot to add aaaaAAAAAwwwOOOOOOOOOOOOOO from an MSNBC(morning joe), FOX, CNN, Daily Beast, talk radio, huffington post and assorteed news papers sort of person
Ozone69
Can KSM get a fair trial? I hope so. He's a US citizen and entitled to all of our Constitutional rights and safeguards for those accused of crimes. (well, actually not a citizen but if slaughtering 3,000 innocent US citizens can be considered a crime and not an act of terror or war he should get a fair trial). BTW, pay no attention to those pesky arguments regarding the discovery part of the trial. So what if al Queda and company get to see how we gathered evidence and mounted a case against these mass murderers. As long as they get a fair trial, that's what is important. Not keeping us safe from another terror attack. Plus, having the trial in a heavily populated urban area that has been the favorite target of the terrorists for years is brilliant. Was that Eric Holder's idea? His law firm (prior to being appointed AG) represented several terrorists at gitmo so that would ensure a very fair trial. Also, has Lynne Stewart spent one minute in jail since her felony conviction of aiding terrosts 4 years ago? Clinton appointee, federal John Koetle sentenced her to 27 months (not a typo, months not years) for passing on information from her imprisoned client, terror shiek Abdul Rachman to his jihdist followers. I guess we don't have a terror problem any more. Just a spike in crime (3,000 murders in one day, whew!).
Picachu
What a magnificent pieve of sophistry. You don't know you ass from a hole in the ground, but your fellow Fox News droids probably read this post and thing you are knowledgeable. The implication of your comments, both vieled and not-so-vieled, is why bother with a trial, let's just execute the guy. And of course that is what we would expect to happen in KSM's world, so you are demonstrating that you are not that different from him.
Ozone69
Please tell me which one of the points I made is not true or accurate. I eagerly await your response.
escomments
Ozone69-
Don't die of old age waiting.
It's way easier to blow off your entire argument as such Fox News misinformation. "Droid"
To liberals, that's an argument!
I'm surprised he didn't bring out the dreaded "R" word or the "B" word to put the icing on the cake.
If you keep pushing it, you might get him to call you a bigot!
crypto
Maybe they can move the trial to Chicago. Either way unless they cause their own deaths, as you suggest, I will take all bets that they will somehow dodge the bullets. Even the less logical thinking person can see that there is a "special reason" for moving the problem within the US. Holder didn't come up with this idea by himself.
Womentoo
Fair trial.....hog wash! everytime I even think about those towers coming down...the tears still run down my face. How can you measure such a horrible act for a fair trial? There are too too too many American haters walking around on our tax paid streets, plotting their next move. For our elected official to say...oh ,we didn't catch that or how did he/she slip through? ugh
Siouxie921
Any fairness for this particular defendant is going to be an extremely hard sell. The man was supposed behind the 9/11 attacks and was also involved in the beheading of journalist Daniel Pearl. All these victims were civilians, and I believe that makes his many crimes all the more abhorrent.
Georealist
This entire article is a giant preposterous head fake. No one's concern should be for this Muderous Muslim scumbag. He should have been shot as a non-uniformed combatant..after being waterboaded up the ying-yang to find out what he knew. Rights??!! Go tell that to the kids who grew up without one of their parents...or the wives and husbands who slept in cold, empty beds for years..or mother's who'll never see their sons or daughters again.
This "trial" is a disgrace..and very likely an escape hatch for the "Mastermind" because he was not arrested by police who are trained in providing citizens their rights..but in a military setting under a different set of rules. It's not unlikely that this trial never get to a jury...the charges may well be thrown out by the judge because none of the niceties of a civilian criminal arrest and detainment are in evidence.
This little showtime special we are about to endure will make America look stupider than it already does for even allowing it...this has nothing to do with taking the moral high ground..we lost that when this piece of filth wasn't done away with months ago.
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n--Y--squareyellowpaperdwood7219
I hope you keep your fervent beliefs in mind the next time a US citizen is "captured" some where. When they torture and/or kill our citizens without the "head fake" of a trial. I fully agree the act was horrific and I have several very dear friends that were lost in the attack. They would not sleep any better in their empty beds if we simply killed a man without any justice "head fake". Their beloveds are still dead and the US would have slipped another notch on the "free democratice" society yardstick. One of the basic tenents of US as a country is a set of laws and a legal system.
I guess using your logic there would never be a need for a trial as all judges are nuts who always let people walk because of the "niceties of a civilian criminal arrest". Why even have a legal system as you feel it is so riddled with holes? Just arm folks with waterboards and guns and be done with it, eh?
Demsdisorder
Thanks, very well said
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n--Y--squareyellowpaperdiamondgirl
There is a huge difference, the nut in Nebraska, was from the US. The scum bags in Gitmo are not. They don't deserve any rights, do you think those people who lost a family member in 9/11 give a dam if they were tortured?
I know Daniel's father is very upset and so he should be. These Democrats are trying to prove to the world they are different than the Bush Adm. This is a political move, and as usual with this White House they don't give a dam what the people think. One Term President...
Cazart
It's not FOR the scumbags in Gitmo - It's for the people of New York City, not to mention Washington and all the other cities all those victims were from.
I'll make it simple enough for even a Republican to understand:
It's a crime. In America, crimes are prosecuted in courtrooms.
If I had set off a bomb and killed 3,000 Americans would you put ME before a military tribunal? No. It wouldn't even occur to you. You'd put me before a judge. The same goes for these scumbags.
It's a crime. In America, crimes are prosecuted in courtrooms.
Here. I'll dumb it down even more: KSM and his buddies belong in a courtroom because You Don't. Fuck. With New York.
Now go hide in your gated community with the rest of the teabaggers. I'm tired of your chickenshit nonsense.
dwood7219
The scum in Nebraska killed an American. The scumbag in Gitmo conspired to kill Americans. When it comes to murder do we really want to split hairs on where they reside? They are heinous acts upon the American soul.
All of us (including Daniel's father, all other grieving family members and even you) should give a damn if we torture people. If you don't care then do not dare to voice outrage in any form when it happens to an American. You would have ceded any moral highground (you know where you love to think you live) to any other country - regardless of their form of government.
(BTW Daniel's dad is not saying we should torture folks at will. He has a different complaint, which I do understand comes from a broken heart).
maddymappo
No the 9/11 terror trial will not be fair if held in NYC. All New Yorkers are victims of 9/11 and victims should not be jurors. This is clearly a war crime and should be in a military court anyway. Al Qaeda declared war,kjihad on us, they did not as permission of Congress to attack us. Even if it is held in a Federal Court for the world to say this symbolic gesture of our democratic nation's humanistic judicial ideals, it is clearly a farce if the trial is held on the spot of the 9/11 catastrophe and unleashs all of this emotional hell in NY. How is that fair?
DakLak
No.
After the prosecutors and police have made all their statements, leaked all their leaks most accused have been convicted by innuendo.
Plantagent
A republican would never use irrational fear-mongering as a tactic.
whipmawhopma
Plantagent - Would a Republican use rational fear-mongering as a tactic?
Plantagent
Rationality is an invention of the liberal elite.
whipmawhopma
Plantagent - "Rationality is an invention of the liberal elite."
You might be on to something there...
khepri
Plantagent: you are such an improvement on your namesake. So much for medieval, early renaissance caste names.
JerryIzzo
Wouldn't the government have to allow the defendants' foreign supporters to donate money to a legal defense fund?
How could they prevent such - and still claim "fair trial"?
FatFreddy
I think people are missing the point here. The suspected terrorists may or may not deserve a fair trial. The American people deserve a fair trial. I don't know about anybody else, but I want to know. I want to know that these people are terrorists. You'll forgive me if I don't take the government's word for it? I want to see the evidence in a fair, open, and balanced trial (if that is possible). Not in a secret military court. It's not about them, it's about us.
I also don't understand why people insist on sticking a "terrorist" label on these people. They want to be called terrorists. They want to be Martyrs. We are only playing into their hands. As far as I'm concerned, these people are nothing more, and nothing less than mass murderers. There is no greater crime against humanity.
Quietplease
Well said!. And to the media: Stop using that damn photo of the A-hole. Why don't you just put a halo around his head at the same time?
KarenF444
The plan is to march these defendants in and have them plead guilty so there will be no real "trials." As with Moussaoui, they will plead guilty, having had no ability to get real legal counsel about an actual defense and we will never see the evidence tested.
Thats too bad because I don't know if these people are guilty. I'm not a scientist but have read for years that there are scientists who say that the planes were decoys and the only way the towers could fall was planted explosives. Are they right or is the government theory right? I don't know. I'd be a good juror if there really was a trial (but would not want to be on this jury). Two things I DO know:
(1) President George W. Bush claimed that Saddam Hussein tried to buy uranium in Africa and that claim was later found to have been based on forged documents.
(2) Gen. McChrystal submitted paperwork for Pat Tillman's Silver Star that was deceptive and now explains himself as having done it out of sloppiness.
I could probably think of more examples but my point is that I KNOW that we cannot be sure of what we're told from the highest levels of our government. Unfortunately, thats just a fact.
tonyjenson
I liken this to Eichmann being taken to Israel for trial. It was a moment of transfiguration for the Jewish state. They transformed from victim to an empowered nation. They said you did this to us and it will not be allowed.
This trial, in the cold light of public display, is our chance to say who we really are: a nation of laws, not dogma.
Why has the Right turned into fearful victims? They've become the very whiny thin-skinned effete punching-bags that they have labled the liberal left with for years. Grow a pair!
xsm941f
Great post tonyjenson. Says it all. Could you imagine the Israelites saying "we're scarred to bring him here". If anyone had a right to just kill someone without trial they did. But they had that rare combination, an understanding of what being a nation of laws means, a set of balls and the ability to see the big picture. In effect they said "we're bigger then this".
Thank you.
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