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Could Khalid Sheik Mohammed Be Released? No. Not Ever.
Yesterday on MSNBC, Sen. John Cornyn suggested that it would be safer to try 9/11 suspects in military commissions because -- I'm paraphrasing here -- you wouldn't have to worry about them "being released." He then added, without irony, that military commissions could "protect the rights of terrorists." Orwell lives: Under what circumstance is a procedurally assured conviction protecting the rights of the accused?
Look, Khalid Sheik Mohammed has confessed -- I have little doubt that he'll be convicted. The Obama administration wouldn't be bringing him to trial in civilian court if they thought there was a chance of his being let go. The same legal rationale that could have been used to hold him indefinitely will be used to hold him in case of an acquittal. As I reported a few months ago, because the U.S.has declared war against al-Qaeda -- and KSM is quite obviously a member of al-Qaeda -- they can claim legal authority to detain him even post-acquittal, until the end of hostilities, under the authority granted by the Authorization to Use Military Force. The Bush administration considered doing this briefly with Osama bin Laden's limo driver, Salim Hamdan; but because it makes a mockery of the American system of justice, they decided against it. But the options don't actually end there.
"They have three sources of authority that would allow him to detain [KSM], one of which is the AUMF, because it directly cites the 9/11 attacks in its language -- the people who planned the 9/11 attacks are combatants and are detainable under the AUMF," explains Ken Gude, a human-rights expert at the Center for American Progress. "Under the .000001 chance that they are acquitted, they will have that authority to detain them."
The attorney general could detain him as an "international terrorist" indefinitely, in renewable six-month periods, based on a provision in the PATRIOT Act. And if things really get desperate, they could detain him as someone who is in the United States illegally, pending deportation. Since no country is going to take a mass murdering terrorist, that detention will essentially be indefinite.
On the prospect of KSM being released, Gude shrugs, "It isn't even in the realm of possibility."
An acquittal would be a political disaster for the administration -- but there's really no way that KSM is getting away, because the government has at least three different ways to detain him indefinitely post-acquittal. It doesn't matter under what venue he's tried. That may make some of us feel safer, but it's also part of the reason why the ACLU's Jonathan Hafetz argues that U.S. detention policy is "essentially lawless."
-- A. Serwer
COMMENTS (9)
Well, this is exactly why he should be tried in a brig in Cuba (or on some other military base).
Why spend this much time and money and have all the media(and the security hassles of doing this in NYC - pity the neighbors of this circus and the hassles they will have to endure just getting back and forth to work and/or home) there, just for some guy who is GUARANTEED never ever again to see daylight as a free man? This simply makes no sense. Just as a taxpayer, having my money spent on this bullshit is galling.
This is a show trial. Not that there's anything wrong with that - it's hard to see what other options we have. But win or lose, this guy is never getting out. Nothing can ever change that.
Posted by: peanut | November 17, 2009 11:59 AM
Peanut:
Trying a civilian in a military court sets a really, really horrible precedent, especially since there are provisions that allow citizens to be held as enemy combatants. It essentially renders the fifth amendment null and void.
Posted by: Keith | November 18, 2009 12:17 PM
Sure, but what if his Al-Qaeda buddies stage a daring daylight raid on the Federal courthouse in Manhattan and rescue him during the trial? Do I have to do *all* of Obama's thinking for him?
Posted by: Gues | November 18, 2009 9:17 PM
So in the event that he was acquitted the Obama administration would default to the Bush position? Quite astounding really.
Posted by: Fatboy | November 19, 2009 2:31 PM
but that's the whole point. it's a show trial. it doesn't vindicate the american legal system at all, because we WON'T LET HIM GO IF HE IS ACQUITTED. it's like a bad parody of what the soviets used to do.
Posted by: jamie | November 19, 2009 2:56 PM
I agree that no New York jury would conceivably acquit KSM; but there is a small chance that he might escape the noose with a "life" sentence.
In practice, "life" generally means a cat's lifespan - 10-15 years before parole eligibility. To be sure, even the most credulous parole board would balk at springing the likes of KSM - one hopes.
However, he has friends out there; friends who might attempt to release him. Breaking into or out of a Supermax prison would likely prove rather difficult, but they might try a different tack: "We have seized a busload of Infidel schoolchildren, and will kill one child every hour until our Glorious Leader is freed!" I wouldn't put it past them...
What then?
Posted by: Jack Boot | November 20, 2009 11:53 AM
Nor would I put it past them to seize a busload of Infidel schoolshildren and kill them in revenge for trying KSM in a military court and executing him.
I think the point would be that we can't let possible terrorist actions control our decisionmaking.
Posted by: fardels bear | November 20, 2009 8:29 PM
Well, if KSM wins acquittal in the U.S. courts on the perfectly valid grounds that all the information which was tortured out of him is inadmissible in court, then the next step of a responsible member of the international community would clearly be to extradite him to another country which has also been the victim of his gang's crime spree, such as
The United Kingdom, 67 of whose citizens were murdered in the World Trade Center massacre,
India, with 41 murder victims at the WTC,
South Korea, which likewise can prefer 28 charges of first-degree murder,
Canada, which lost 24,
Japan, also 24,
Colombia, 17,
Jamaica, Mexico and the Philippines, 16 charges each,
and also Argentina, Australia, Bangladesh, Belarus, Belgium, Bermuda, Brazil, Chile, China, Côte d'Ivoire, Democratic Republic of the Congo, the Dominican Republic, El Salvador, Ecuador, France, Germany, Ghana, Guyana, Haiti, Honduras, Indonesia, Ireland,
Israel, Italy, Jordan, Lebanon, Lithuania, Malaysia,
Moldova, the Netherlands, New Zealand, Nigeria, Peru, Portugal, Poland, Russia,
South Africa, Spain, Sweden, Switzerland, Taiwan, Ukraine, Uzbekistan, and Venezuela.
Posted by: W. Kiernan | November 21, 2009 9:43 PM
This a little bit funny. I found your site via search engine a few moment ago, and luckily, this is the only information I was looking for the last hours.
Posted by: mjfprod | January 29, 2010 1:28 AM