Saturday, April 24, 2010

Why Giving KSM A Trial Takes Away Your Rights

My Pal Andrew gives an excellent analysis below of why trying that vermin, KSM, in Federal Court would erode the Constitutional Rights of ALL AMERICANS.

Trying Khalid Sheik Mohammed in New York Federal Court Will Destroy Your Constitutional Rights:

Deborah Sherman, a “journalist” for the New York Times magazine, recently interviewed a Republican Senator. In response to the Senator's question to Sherman as to why journalist Sherman thought foreign terrorists such as Khalid Sheik Mohammed (KSM) should be tried as criminal defendants and thereby getting all of the Constitutional rights and benefit of a United States citizen, journalist Sherman was happy to say we "should take the moral high ground." Forgetting about the fact that the journalist shouldn'’t be giving her opinions anyway, I had to ask myself, what the heck does “take the moral high ground” mean in this context?

Well folks, there, in a phrase, is the liberal analysis for you – an unexplained, fuzzy-wuzzy, feel good emotional statement devoid of any thought or intellectual analysis. As I explain more fully below, however, it is these simple emotional platitudes such as those from Ms. Sherman and ones recently echoed by Attorney General Eric Holder (comparing war criminal KSM to a serial killer) that help explain why our Constitutional rights are quickly fading away.

The fact is, however, that a lot has been written about decision by the Government to try KSM in criminal court in New York City as opposed to trying him before a military tribunal. Polls have been taken which show a substantial majority of Americans oppose the decision and many pundits and commentators criticized the decision. Even liberal New Yorkers are against it. Critics ranging from 9/11 victims’ families to Mayor Bloomberg and others, point to various unanswered questions and to flaws in the decision-making process, including the following:
(1) The reckless expenditure of $100 million or more of taxpayer dollars for a trial of one person where a military tribunal is not only available but specifically authorized by an act of Congress; (2) Trying KSM in New York will give KSM a terrorist propaganda platform; (3) The trial will greatly and unnecessarily upset an already scarred civilian population; (4) What will the United States do if KSM is acquitted by a “jury of his peers” or if he gets off on a technicality, and then he walks smugly, triumphantly and victoriously down the Courthouse steps for all the news cameras to see?; (5) Why on Earth would the Government risk losing a criminal trial when KSM, through a lawyer, has reportedly already offered to plead guilty before a military tribunal?; (6) Given the dozens of prior trials of spies and war criminals before military tribunals and given the specific Congressional mandate such tribunals for terrorists, it is Constitutional and more appropriate to try KSM and other terrorists of war crimes; (7) KSM may embarrass the United States or otherwise compromise National security by successfully by employing any criminal defendant’s right to access relevant evidence, which may include evidence of the CIA's tactics and intelligence; (9) The likelihood of a conviction and application is not high given that it takes only 1 juror out of 12 to result in a mistrial or to override application of the death penalty; and (10) Terrorists may use the opportunity to once again target New York during the KSM trial.

Some or all of these criticisms may be indeed valid, but I believe the following additional and paramount concern has unfortunately been left out of the conversation and is certainly something that the esteemed Ms. Sherman and her like-minded friends probably haven’t even thought about: Trying KSM as a criminal defendant sets bad legal precedent which can erode our Constitutional rights.

What is legal precedent and why should we Americans care? In simple terms, precedent is a rule of law set by a Court by way of a decision or a ruling flowing from civil and criminal proceedings. Unless overturned by higher courts, these decisions and rulings establish legal authority that other judges are obligated to follow or, in some circumstances, constitute authority that judges should be persuaded by. Precedent can, of course, be a good thing, because it helps a judge come to a decision if one his or her sister judge’s has already analyzed similar facts and issues and provided an answer. Thus, precedent helps establish the way future courts must or should rule when faced with similar facts or issues.

An easy to understand example of precedent is the "Miranda Warnings", which we all know are now constitutionally required statements that any police officers must tell a suspected criminal when he or she is in police custody, is being questioned or is arrested. But the “Miranda Warnings” did not come out of thin air. The warnings were first articulated in a decision by a court—the United States Supreme Court, in fact—and since that decision, every police officer in our great country has had to read any American his or her Miranda Warnings or risk having any evidence from their interrogations not being admitted in Court.

Therefore, with the idea of “precedent” in mind, it is clear that trying KSM as a criminal defendant, and guarantying to him all Constitutional protections afforded to you and me as Americans will lead to a number horrible rulings from the Court which could have the impact of damaging all of our rights. Here is how the decision to try KSM in could impact you and me:

1. The Loss of the Right to A Speedy Trial: Under the Constitution, we all enjoy a right to have our case heard by a jury of our peers, and to have it heard quickly. Here’s how the exchange between, KSM, through his Court appointed lawyer(s) (paid for by you and me) and the Judge will go as to this right which KSM will seek to cloak himself under:
KSM Lawyer: “Judge, my poor client has been sitting in Gitmo for almost a decade without any hearings or any rights! Dismiss his case pursuant to the United States Constitution and all of the cases cited in my legal brief which says that my client must go free!”
Judge: [Thinking that he can’t dismiss the case because the public will freak out] says, “Uhhhm, well I am going to deny your request because 9 years does not deprive the right to a speedy trial in this case.”

The public exhales because KSM doesn’t get off on a technicality. Now fast forward to the time that you happen to get arrested (rightly or wrongly) for something. The government decides to throw you in a pit for nine years without being able to access the Courts or a lawyer. Here’s how the motion to dismiss your case might go on the ground that you were deprived of a right to speedy trial.

Your Lawyer: “Judge, my poor client has been sitting in a pit for years without the access to the Courts! This is un-American!!! You must dismiss this case.”
The Prosecutor: “Judge, you should know that in the case of United States v. KSM, Judge So-and-So clearly held that it was not unconstitutional to hold someone for almost a decade. That case is precedent and you should follow the holding of that case.”

See what I’m saying now? Let’s try another one.

2. The Loss of the Right Not To Be Tortured And then Tried:

Clearly, if you are arrested and the government decides to spend years torturing you before appointing you a lawyer or otherwise giving you access to the Courts, your case should be dismissed based on numerous grounds and the government should be sanctioned. Indeed, any Judge would be horrified to learn that the government abused its police powers this way to any American. But now here we have KSM who was water boarded dozens of times after being “arrested.” President Obama has officially declared that water boarding is torture. Now let’s go to the hearing:

KSM’s Layer: “Judge, my client has been serially and repeatedly tortured by the government. He has been water boarded. He has been put in a box with ants. He has been deprived of food and water. This case must be dismissed on numerous grounds and I request that, not only should the government be sanctioned, those responsible should be put in jail, including President Bush!”
The Judge: [Thinking to himself, “Uh oh. What to do? I can’t let this guy go.”] Sir, I am going to agree with you that what the government did is horrible and I apologize for that, but I am not going to dismiss the case. However, I will say that any statement made during those torture sessions will not be evidence in this case.”
KSM’s Lawyer: “Are you serious, Judge?”

Again, fast forward to the time that you happen to get arrested (rightly or wrongly) for something and now think about what the government can get away with doing to you and will be able to later argue is “Constitutional” because the KSM Judge let it happen. This is getting scary, right?

3. The Right to A Fair Trial/Change of Venue

Any criminal defendant can have the place of his trial changed where the local population is already prejudiced against him based on media and other publicly known facts. So where does the government decide to try KSM? Why, in New York! Brilliant. Can you name any local population that has more prejudice against a criminal defendant than New Yorkers have against the 9/11 terrorists? And if and when the Judge refuses to change the venue to another courthouse, think about any criminal case in the future that wants to change venue. It won’t happen because of the precedent set in the KSM trial.

4. The Right to A Lawyer:
The Constitution guarantees all Americans the right to a lawyer following an arrest. KSM, however, was not given access to a lawyer for years and years. Playing out the above Courtroom scenario, the Judge will once again refuse to dismiss the case on the grounds that KSM was not given access to a lawyer. Thanks again, we now have another ruling that says that the Constitution does not give you the right to a lawyer for years! Woohoo!!

Of course, I could go on and on and, surely, people who disagree with the above will try to point out that future Judges would not have to follow the KSM judge’s rulings because, I guess, KSM is a terrorist or something. But such superficial arguments fail to take into account the truth that once precedent has been set, it is a guidepost for future cases.

Now, where should KSM be tried again?

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