Changing the Zip Code of the trial of Khalid Sheik Mohammed and four other terrorists from New York City to Somewhere, U.S.A. does not solve the problems a civilian trial raised in the first place. The decision does provide some justice because hundreds of millions of dollars in security costs will not be borne by the city that was the major victim of this terrorist quintet. But security and other issues do not disappear with new geography; they just move to the next location.
Try Washington, D.C., where the federal courthouse is a mere bomb’s throw away from the House and the Senate. Congress will certainly nix that possible venue. So where? Any population center with suitable courts and jails (meaning attack proof) will incur the same costs and lockdowns, including roof top snipers and street closings, that New York was planning. Any remote location, such as a military base, will cost time and money because security enhanced courtrooms and holding facilities will have to be built. Waiting for this construction clearly casts aside “swift” justice, a promise this administration made to the victims’ families when explaining a rationale for moving the trials to our shores, and which was reiterated by David Axelrod just last Sunday on Meet the Press.
In its attempt to sell us on civilian trials for terrorists, the administration claims we need to demonstrate that “we have the best criminal justice system in the world.” For just that reason illegal enemy combatants should not be tried under its rules.
Battleground conditions do not translate to federal criminal rules. There are no evidence bags stored in the foxhole to preserve the chain of custody. Any effort by a trial judge to force the terrorist’s foot into our constitutionally honed Cinderella shoe threatens valued protections that have been enlarged over two centuries of Supreme Court review, most since World War II. At the same time, a policy that includes the possibility of a civilian trial for any terrorist controls our treatment of all terrorists, thereby crippling our ability to obtain needed intelligence.
Assume that for KSM et al there are no Miranda issues. That is, the government has sufficient evidence to prosecute and convict without using any statements made sans warnings about the rights to a lawyer and to remain silent. But what about combatants captured in the future? What if Osama Bin Laden is found alive? Does he have to be given Miranda warnings just in case he could be tried in a federal court?
The administration pretends it is satisfied with the information it received during a 50 minute interview with Christmas Day bomber wanna-be Umar Farouk Abdulmutallab, leaking that he revealed more bombers were on their way. Yet, three factors that take months to develop but which are necessary for meaningful interrogation were missing: questions based on information in our files like his email intercepts, verification of his answers, and a person having a rapport with him doing the questioning. We shut Abdulmutallab up for the appearance niceties attendant to a regular criminal process when we had almost 300 witnesses to his crime so did not need his “confession.” Don’t we want to know who those other bombers are, and where and when they are coming? The fact that Abdulmutallab is considering cooperating is of no consolation. One month of valuable time has been lost. What’s more, we have put the terrorist in the driver’s seat, allowing him to bargain when and what he will reveal.
A major problem unfamiliar to non lawyers is the Brady rule, which requires the government to provide the defendant with any evidence that could be “exculpatory.” This broad term includes access to any witness and document that could directly bear on innocence, as well as information that could indirectly help, such as impeachment material revealing whether the witness was given money for appearing even if just travel expenses. Brady, a valuable tool for defense counsel, is a constitutionally based requirement. Most often, if not followed, it results in reversal of the conviction. It is usually played out pretrial where the defense requests specific witnesses and documents, and the court decides whether the requests are speculative or should be granted.