Saturday, February 27, 2010

Is the Man Who Destroyed the World Trade Center a 'Common Criminal'?

Retired U.S. District Judge Judge Thomas Penfield Jackson, best known for being the judge who tried to break up Microsoft, called this week for Khalid Sheik Mohammed’s criminal trial to be held in Washington, D.C. (“Bring Sheik Mohammed's trial to D.C.”).

Jackson approved of Attorney General Eric Holder’s original idea to try KSM in Manhattan, but, “[f]or reasons I have some difficulty appreciating,” writes Jackson, the city of New York has rejected the idea.

I submit that’s not all Jackson has some difficulty appreciating. For instance, Jackson simply can’t imagine that KSM is anything more than a “common criminal,” and flatly rejects from consideration that KSM should “be tried by a military commission at Guantanamo Bay or anywhere else.”:
His crimes were civil, not military. Mohammed owed no allegiance to any flag, nor did he wear the uniform of any country. He answered to no code of military honor or of the law of war. His targets and victims were innocent civilians who had never sought to harm him. His weapons were four stolen commercial civilian aircraft. He was not captured on a battlefield; he was hunted down like any common felon, hiding in disguise among civilians in a city far removed from military activity.
Jackson has no appreciation--none--that KSM’s planning and execution of the September 11 attacks were acts of war, in particular, an act of jihad, carried out on behalf of an international terrorist army that numbers in the thousands, and is dedicated to making war on America in the name of Allah.

Nor does he seem aware that Congress and the President had long since determined that America’s response would be a military one. The defeat of al Qaeda has been a military objective for America and her allies for the past 9 ½ years.

In 2001 the United States Congress authorized President George W. Bush to respond to the September 11 attacks using “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The authorization is specifically described as a statutory authorizations for purposes of the War Powers Resolution. Military commissions are an essential part of that authorization.

This was an implicit rejection of the pre-9/11 approach to mass terror attacks as a law-enforcement problem--the approach which Jackson seems incapable of looking beyond.

Jackson has the vaguest appreciation that trying KSM as a common criminal in a civilian court runs the risk of something going wrong.

The Justice Department has been rumored to be concerned with an alleged reluctance of D.C. juries to impose the death penalty, but no prosecution should ever be undertaken for the primary purpose of putting the defendant to death. The goal is a fair trial.
Obviously, the goal in the American civil justice system is a fair trial. But what is the goal in America’s war on al Qaeda? (How about victory?).

And there’s more that can go wrong than just that KSM escapes the death penalty. He may be acquitted and freed--unless we aren’t serious about it being a “fair trial.” Jackson, (who writes like someone with that superficial assumption that “everybody’s going to do his best”) has no doubts, based upon what reports of what a “highly competent panel of prosecutors has reportedly told the attorney general,” that “[t]here is virtually no possibility of an acquittal or even a hung jury.”

There’s not? Than how can it be a fair trial? We in the Detroit area just found out, and not for the first time, how fickle a district court criminal jury can be, when a single juror refused to look at barrels of evidence in the Sam Riddle trial because her racial bitterness was more important to her.

Then there’s been the outspokenness of Attorney General Holder, who guaranteed KSM’s fair trial in New York would lead inexorably to conviction and execution, because “failure is not an option.” At the same time, President Obama was promising those offended that KSM was getting the legal rights of Americans “won't find it ‘offensive at all when he's convicted and when the death penalty is applied to him.’”

Only someone self-satisfied enough to believe a conviction is certain because a “highly competent panel of prosecutors” have assured their boss of that would think equally competent attorneys can’t make serious legal hash of the chief law enforcement of the United States and his boss, the President, declaring publicly that your client is guilty in advance of trial. (See the Charlie Manson trial, when Manson flashed the jury a Los Angeles Times headline, “MANSON GUILTY, NIXON DECLARES,” and nearly won a mistrial).

In the inconceivable event that [a terrorist] is acquitted, we’re told not to worry — because he will never be released. The administration has been widely derided for this foolish chest-beating. Clearly, it runs roughshod over the most fundamental of trial rights: the presumption of innocence. The commentary has empowered defense lawyers with a very strong argument that their clients cannot get a fair trial.
The thing is that, on the one hand, fighting for military victory “using all necessary and appropriate force,” and then, on the other hand, civil trials, are two profoundly incompatible tools. In wartime, the statement, “failure is not an option” makes sense. In our civil system, it makes no sense. Failure is always an option, even when a defendant is guilty as sin.

But a different Jackson, Supreme Court Justice Robert Jackson, who presided at Nuremburg, said this in 1945:

The ultimate principle is that you must put no man on trial under the forms of judicial proceedings if you are not willing to see him freed if not proven guilty. If you are determined to execute a man in any case, there is no occasion for a trial; the world yields no respect to courts that are merely organized to convict.
No show trials. No trials just to prove a point (terrorists, don’t hate us!).

But Penfield Jackson believes in the system in which he labored for years. He believes in his silly way that the prosecutors are top-notch, that the D.C. jurors he’s encountered were “attentive, carefully followed my instructions on the law and returned verdicts in numerous cases consistent with voluminous and complicated evidence,” and that the D.C. trial judges -- his “former colleagues on the court, . . . have distinguished themselves and their court and are a credit to the image of American justice.”:

A public trial in a civilian federal criminal court would demonstrate to the world, once again, that the United States, applying its well-respected standards for fairness, can convict terrorists as the common criminals they are. There is no more appropriate forum than the D.C. federal district court.
This makes a great Rotary Club speech, but as policy advice on the war against Islamic jihadism, it stinks. Jackson simply has no conception that the country is in a war. KSM isn’t a common criminal. Not because he deserves the honors of a soldier (he doesn’t), but because the threat he represents requires a military response. And all the laws and privileges of war that go with it.


Anonymous said...

What an idiot. Does he expect all enemies of the U.S. to wear identifiable uniforms? Maybe they should wear little patches sewn to the uniform.

The flags of Islamic terrorist organizations are clear about their intent.

Hezbollah - A fist holding an AK-47, with the koran underneath and a world globe under all this.

Hamas - They have two swords crossed (Muslim Brotherhood) and a koran on top.

Al Qaeda - A globe on a black flag - rising from the globe an AK-47 and an Islamic flag.

Black on the flags means death. They nearly all have the koran, an image of the world (globe) and some sort of weapon.

There is no allegiance to any one country for Islamic terrorists. It is all done for Allah and Islam.

I am so very fed up with these blind and stupid people.

Anonymous said...

I agree with Anon. The art of war is to know thy enemy and know thyself.

Islamic terrorist leaders know about our weaknesses and play them well. They know what they want and how to get it from us.

We seem to only understand our enemies from our own subjective viewpoint. It is how we have been taught with thanks to postmodern philosophies.