Wednesday, November 18, 2009

Barack Obama's Teachable Moment
First, both sentence and verdict -- then the show trial!

11/18/2009 -- On NRO Andrew McCarthy notes the utterly amateurish comments of President Barack Obama during a Q&A with press journalists, while traveling in China. The statements seemed all the more surprising given the fact that the President was once a Professor of Constitutional Law, and would presumably be fully aware of the implications of such comments.
In a meeting with the press in China, President Obama said that Khalid Sheikh Mohammed would be "convicted" and had "the death penalty applied to him" . . . and then said he wasn't "pre-judging" the case. He made the second statement after it was pointed out to him — by NBC's Chuck Todd — that the first statement would be taken as the president's interfering in the trial process. Obama said that wasn't his intention. I'm sure it wasn't — he's trying to contain the political damage caused by his decision — but that won't matter. He has given the defense its first motion that the executive branch, indeed the president himself, is tainting the jury pool. Nice work.
Yet, Attorney General Eric Holder has now amplified the controversy by flatly stating that the failure to secure a conviction is simply not an option.

Andrew McCarthy illustrates well the unnecessary risks to the judicial system itself, and even to future defendants, arising out of the decision to try these war criminals in civilian court trials in New York City. Other critics coming from a defense perspective, such as Shannon Love, have raised alarms regarding the potential negative consequences on a judicial system that was never designed to deal with such problems.

Speaking of such risks, one wonders from where exactly will the court seek this ostensibly neutral jury pool, in and around New York City?

Practical Problems - Jury Pool:
I can immediately think of four major practical problems related to the potential jury pool that could easily come to plague prosecutors, and will, by the very nature of things, mock any notion of "fairness" in a jury trial process, which four items are listed below:

1) Given the nature and depth of Islamo-facist enmity toward all Western institutions, including all faiths other than their own, toward all our democratic institutions, including our judicial system, and finally toward most Americans; and given their willingness to act on that hatred -- who in their right mind would willingly consent to serve on such a jury?

2) Given the nature and depth of the infection of American society and it's institutions with a level of "political correctness," one which has demonstrably caused, as also pointedly noted by Andy McCarthy on NRO, occasional and unacceptable levels of denial of the obvious -- most recently manifested among the ranks of our first line of defense in the military at Fort Hood -- what assurance do we have that holding this unnecessary show trial will not trigger an Islamist terrorist reaction, one perhaps launched in some other venue, that will be tragic and unnecessarily result in death and destruction?

We know, for example, that the thorough and able prosecution of the plotters in the first WTC bombing by the team of prosecutors which Mr. McCarthy led, did not stop al-Qaeda from designing and carrying out a far more deadly attack. Who is to this day willing to say confidently that that first trial was not a significant or even a major contributing factor motivating the latter terrorists?

The trials arising out of those first attacks were certainly were not a deterrent!

3) How will the court find a jury of their "peers" other than by, for example, packing that pool with self-professed Muslims? Or, will they proceed by identifying an agglomeration of half-wits; people who have either never heard of these war criminals, or who have somehow never formed an opinion of them that would prejudice their ability to fairly judge the evidence adduced at trial? And, as a corollary, how do they keep out a flier -- some nutcase seeking historical infamy, who decides to "hang" the jury?

4) Given the huge historical stakes involved, including the heavy prior involvement of the Attorney General and other now-top officials in the Obama Justice Department in laying much of the defense groundwork pre-2008, and since the election in designing "the protocols" through which Mr. Holder claims this hitherto unprecedented decision was made -- to proceed with civilian trials in New York of these war criminals -- what basis do we have for believing that adequate consideration was given to ensure the safety and security of potential jurors, or others, both now (through the trial), and into the future?

Civil "Show" Trials As An Unnecessary Risk:
The singular factor underscoring all of the above, is that these trials are unnecessary from a constitutional perspective, and a calculated risk. And has been pointed out by, among others, Andy McCarthy, and James Joyner, there is little or justification for them, other than as "show trials."

Even Obama himself was at one point looking favorably on the trial of Khalid Sheikh Mohammed by military commission. Gee, what happened?

And the Defendant himself was willing to plead guilty to a military commission!

That fact came up as a point of contention when Senator John Kyl (R-AZ) confronted Attorney General Holder over it at a Judiciary Committee hearing on the topic of the civilian trials.
Tempers flared when Sen. Jon Kyl, R-Ariz., challenged Holder to say how a civilian trial could be better, since Mohammed has sought to plead guilty to a military commission.

"How could he be more likely to get a conviction than that?" pressed Kyl, to applause from some in the hearing room.
The point is that all of these were acts were acts of war, and that military commissions are a thoroughly constitutional process, one backed by historical precedent, as the President himself emphatically stated in a speech back in May.
The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions. Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war. They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.

It is also a process by which we could have avoided the obvious, unnecessary and unacceptable risks that Barack Obama seems insistent on visiting on the American people with regard to several terrorists whose acts unquestionably constituted acts of war.

But apparently for Barack Obama and Eric Holder, the show must go on!

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