Thursday, November 19, 2009

Senior Day last week Navy v Delaware

9 and 3 coming up next week -v- the Rainbow Warriors.

KSM in Civilian Court.

Some well considered questions from Sen. Graham:

Some rather remarkable things have been said in response to questions like these. For instance:

We needn't worry that KSM was never read his Miranda rights, because the evidence against him is overwhelming. Also sprach Senator Patrick Leahy. (Ditto for UBL, should we ever find him.) No need to fret about these particular defendants, in federal civilian courts not having been Mirandized. No worries.

Do you think that the defense lawyers these guys will find (or who will be clambering to volunteer) people like Ramsey Clark or Lynne Stewart, will passively accept this line? Not if they are worth their salt. Clearly, they will at least try to argue that you cannot try someone that has not been Mirandized, this on the solid grounds that the decision to try them in a civilian court brings with it all the legal protections afforded defendants in that setting.

Nor can we expect that arguments made out of concern for national security will sit easily with them as they go through the mining process that is discovery.

Nor can we expect that they will leave well enough alone the promising line of defense that their client was subject to torture, even if it is true that he confessed to 9/11 well before water boarding.

Nor can we expect that valuable information will fail to be passed to our enemies as it is mined, and that court transcripts will be valuable sources of intelligence for the enemy.

Nor can we expect that security will be inexpensive.

Nor can we expect that our enemies will fail to see that they can argue that precedent has now been set, that military tribunals should be a thing of the past for enemy combatants. Neither should we be naive in this regard vis the lawyers that would represent them.

The remarkably arbitrary manner in which Holder and others appear to have decided who should go to civil courts and who should not, will not hold up to serious legal scrutiny, and demands for consistency of explanation and application.

Nor can we fail to see what a propaganda bonanza the proceedings will be for a pontificating KSM, playing to the worldwide audience of those who sympathize with his view of America, the West, and with his militant Islamic totalism. This will be one of, if not the show trials of the century. We will have essentially given the man his own television show, and his own You Tube channel.

Lastly, on the off chance that he is acquitted in a civilian court, with its attendant protections, we cannot do anything that can be interpreted as placing him in double jeopardy, without also expecting his defenders, legal and otherwise, to argue that to do so is against the very American values that Holder claims to be upholding by going ahead with this. The constitution is very clear on double jeopardy. Once again, no lawyer worth his salt will pass on the opportunity given.

So, we have taken a man who was ready to plead guilty before a military tribunal, and who would have been removed from this mortal coil, and have placed him in a situation where it is possible that he could go free, and brought with it all these attendant worries. We have done this when it was not necessary to do so, and for some ill-defined reason involving international opinion. Never in the history of warfare have we done this.

In two words, and with considerable understatement: