A Prosecutor’s Take on a Civilian Trial for KSM | HughHewitt.com | 02.15.10

It wasn’t exactly “My Funny Valentine “ that Vice President Joe Biden and former Vice President Dick Cheney sang to each other on the Sunday talk shows.

Among many areas of sharp disagreement was the proposed trial of Khalid Sheikh Mohammed (KSM) in civilian court.  So we now know what the former and current vice presidents think about this question.  But what do prosecutors themselves actually think?

As it happens, after touching on the KSM trial issue in a recent column, I received email comments from a prosecutor with both federal and state experience.  Over a couple of exchanges, he raised a number of issues reflecting prosecutorial experience, issues that have been overlooked in the Cheney-Biden exchange and many other discussions of the issue.

Mr. Cheney said he was concerned that the Administration lacked seriousness in the war on terror.  This prosecutor shares that concern.

Here are his comments, edited for flow and space:

“As a prosecutor, I am flabbergasted that the administration has elected to try KSM in a civilian court.

“Because the government has referred to waterboarding as torture, they can’t use the confession.  Knowing just some of the details of his confession, I see no way that a Federal judge (or for that matter, a county judge in any jurisdiction with running water and electricity) would find KSM’s statements/confessions admissible.

“Still, there is an opinion from DC federal district court, aptly titled Mohammed vs. Obama (Nov 2009), which suggests that torture in and of itself may not be a total impediment to admitting a defendant’s post-torture confession.

“That leaves two scenarios for the government if they try to get the statement admitted at trial.

“The first scenario would be that the Court excludes the statement because it was the product of coercion and therefore not voluntary.  Mark Thiessen has noted that only three individuals had been subjected to waterboarding. KSM is one of them.  I can easily see a judge with life appointment blistering the government for such a foolish attempt to introduce the confession under these circumstances.  And I think Scalia and Thomas would agree, not to mention more liberal members of the Court.

“The government then would be forced to rely upon independent means to prove KSM was the 9-11 mastermind.  Who knows what that would entail in terms of revealing intelligence sources (i.e., witnesses to confront, per the 6th Amendment), information gathering techniques, and the like?

“The government undoubtedly is banking on its ability to play the video of the airplanes crashing into the Towers and hoping that that plus a shred of evidence pointing to KSM will do the trick.  They’ve got pretty good odds.

“But getting there could be painful.  The defense will draft discovery motion after discovery motion demanding to know the ‘who, what, where, when and how’ of the Government’s evidence — and each one of those requests will be draped in the flag of a right to a fair trial.

“And supposing a conviction by this means, what’s the benefit?  As a strategy for winning over world opinion, it will come at an extremely high cost (i.e., revealing our intelligence gathering methods).  Do we believe that, after a guilty verdict, the mullahs will embrace their followers and say, ‘We were wrong about America all this time.  We can get a fair shake!’?

“The second scenario is that the Government succeeds in getting KSM’s statement/confession admitted into the trial.  The irony would be rich. The president’s premise for trying KSM in civilian court was, in part, to show the world that we are a nation of laws and that we are dispassionate in the pursuit of justice, and that he’ll get a fair trial.  But the president has said that waterboarding is torture.

“It is a sure thing that the critics’ post-conviction argument would go through the legal trickery of the United States in relying on the very statements whose method of production the president had already denounced as being shameful and perhaps illegal.  This totally defeats the president’s purpose in seeking a civilian trial.”

Yesterday Vice President Biden insisted that the Bush and Obama policies for handling captured terrorists were the same.  Even if true, it is impossible to imagine the Bush Administration stumbling into a presidential denunciation of the very evidence on which a terror trial is likely to rest.

Anyone who understands what it means to take the war on terror seriously would not do that.