Bad Law – How Trying KSM Will Shred YOUR Rights

I’ve been arguing with various folks for years that there is no difference between law and politics. It drives me batshit when people cling to some ridiculous idealized notion that, somehow, there is a cold line between the elected legislature and the appointed judiciary – that the honorable Justices of the court are not swayed by the policy wonks, or the voters, or public sentiment, but apply some esoteric reason in the furtherance of Justice.

David Feige, writing for Slate, lays out in clear language exactly how trying Kalid Sheik Mohammed in NYC will result in yet further shredding of the constitution and destruction of legal rights for everyone – rights that ought to be strengthened and preserved in the wake of the Bush/Cheney’s unmitigated assault thereon.

Good criminal defense attorneys are seldom deterred by futility, so it’s reasonable to expect that KSM’s lawyers will make all the arguments there are to make: They’ll allege a violation of KSM’s right to a speedy trial…
…seek suppression of KSM’s statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary…
…insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree…
…demand the names of operatives and interrogators, using KSM’s right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret…
…attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods…
…move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.

All of these motions and three dozen more will be either denied or denuded of any significant impact on the disposition of the case. The speedy-trial argument will fail. Important documents will be scrubbed and redacted to the point of unintelligibility or will be ruled irrelevant. The motions to dismiss will all be denied. And though some of KSM’s statements will be suppressed in order to preserve the appearance of impartiality and integrity, plenty of the most damming ones will remain admissible. While condemning in stern language the terrible treatment of KSM and denouncing water-boarding as beneath the high standards of our justice system, the trial judge will nonetheless admit into evidence statements made by KSM in subsequent military tribunals, along with those made to a so-called “clean team” of interrogators, rendering all the suppressed evidence utterly insignificant.

At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM’s years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.

And so, if you ever find yourself having the living shit kicked out of you in the basement of an American police station, don’t think for one second that your confession – given only to make the beating stop – will be tossed out by the judge at trial; that your lawyer will bring the light of justice to bear on the dark and evil machinations of the process. Sorry. There’s precedent for this sort of crap.


4 Responses

  1. 183 Waterboarding sessions…because 182 just didn’t do the trick.

    I think of law as the final process in the legal & political rats’ digestive processes. (aka ratshit.) What comes out all depends what they like to eat.

    Unless terrorist trials become a permanent fixture, in which case everyone’s rights will be long gone anyhow, I don’t think there will be much additional side-effects on people’s rights because of these trials.

    Why? Largely because the damage is already done. But also because I think this era may become one of those forgotten eras. People “just want all the bad stuff to go away” and that probably includes those in the legal racket. That’s a big part of the reason why many Democrats want to let Americans responsible for torture get away with it. They just want it to fade from memory, so they can have their old “Good-Guy” self-image back.

    I am reminded of the Star Trek episode where the cast of Deep Space 9 is send back into an original Star Trek episode that included Klingons that did not look like Warf or any of the other Kilngons in Deep Space 9.

    He explained it by saying something to the effect of “It was a dark time in our history. One that we do not like to talk about.”

    I suspect this will be the same way. America will eagerly forget any of this ever happened and will return to it’s deluded self-image as the champion of democracy and human rights that it had for a long, long, time before all this nasty image tarnishing stuff.

  2. Oh, and Cousinavi,

    Your old pal Peter McKay, his up to his neck in torture allegations at the moment.

  3. These are special people, caught in special circumstances, they are foreigners, illegal combatants, and deserve swift and streamlined military trials followed by quick hangings. It’s a farce that they’re being given civilian trials.

    • It’s not a farce at all. What was a farce was locking them up, denial of habeous corpus, and the shredding of the constitution by Bush and Cheney.
      The 93 WTC bombers were tried in civilian court. The shoe bomber was tried in civilian court. John Walker Lindh was tried in civilian court.
      “Illegal combatants” isn’t even the invented term Bush created to suspend legal rights – it was ENEMY combatants…but there’s nothing I like more than debating with folks who have their head jammed up their red, white and blue asshole, so feel free to expound on your theory. Especially interested in how you determine punishment BEFORE you have a fucking trial. It would seem the teabaggers are right…America is going down the tubes…and it’s dicks like you that insist on yanking the chain.

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