Josh Marshall, Unafraid - Now.

Josh Marshall makes some cogent arguments in support of trying Khalid Sheikh Mohammed in Manhattan but apparently he is not a careful reader of.... Josh Marshall.

Some cogent stuff first:

And most of the criticism comes under three distinct but related arguments: 1) civilian trials give the defendants too many rights and protections and thus create too big a risk they'll get acquitted and set free, 2) holding the prisoners and trial in New York City puts the city's civilian population at unnecessary risk of new terror attacks, and 3) holding public, civilian trials will give the defendants an opportunity to mock the victims, have a platform to issue propaganda or gain public sympathy.

The first two arguments strike me as understandable but basically wrong on the facts. The third I find difficult in some ways even to understand and seems grounded in bad political values or even ideological cowardice.

Dr. Marshall believes (as do I) that there is plenty of untainted, admissible evidence, that convictions will be a slam dunk, and that we will hold these guys under other charges if lightning strikes and a jury acquits.  

As to putting New York at risk, it is already a huge target, and anyway, we can't give in to terror:

On a more general level, however, since when is it something we advertise or say proudly that we're going to change our behavior because we fear terrorists will attack us if we don't? To be unPC about it, isn't there some residual national machismo that keeps us from cowering even before trivially increased dangers? As much as I think the added dangers are basically nil, I'm surprised that people can stand up as say we should change what we do in response to some minuscule added danger and not be embarrassed.

It's a fair point which I would find more compelling if I were otherwise convinced that these trials made sense.  But Dr. M. rides off the rails here:

And finally we come to the fear of what KSM and the others will say. I don't see what factual dispute there is here. And at some level I don't even understand the argument. Logically I understand it; I understand what they're saying. But it's so contrary to my values and assumptions that at some level I don't get it. I cannot imagine anything KSM or his confederates would say that would diminish America or damage us in any way. Are we really so worried that what we represent is so questionable or our identity so brittle? (Some will say, yes: torture...

Torture?  Is that all he can think of?  Hmm.  If Marshall read Marshall, perhaps he would recall his reaction when news first broke that the Fort Hood shooter might be a Muslim:

This Is Going To Get Very Dark

Multiple news organizations are reporting that one of the suspected gunman, apparently the one who fired most of the shots, at Fort Hood is Major Malik Nadal Hasan, 39. He was shot dead during the shooting.

Dark?  Why?  There are Muslims that hate America - is this news?  Of course, the Muslim connection may have had nothing to do with Hasan's motivation, which Obama himself boldly and insightfully described as "incomprehensible".

Dr. Marshall and Obama himself are in the classic liberal school that see the Great Unwashed of America as a hotbed of racist, xenophobic, anti-Muslim fear and loathing needing only the least spark to ignite our country in flames.  That is why the Hasan incident is "dark" and Obama's first urge (and the Times!) is to worry about an outbreak of anti-Muslim sentiment.

So imagine if Khalid Sheik Mohammed spends his time in the media capital of the world explaining, day after day, the basis in the Koran for devoted Muslims to take up arms against the West.  Will his daily calls to jihad divide this country, setting the rest of America against the Muslims within?  If the news that we had a Muslim shooter at Fort Hood was "dark", why wouldn't a daily call to jihad by a man who killed over 3,000 people be darker?  As to what is so "brittle" in the American identity, Obama and Marshall leave no doubt of their bleak assessment of America's tolerance for religious and ethnic minorities.  Not their tolerance, of course - it is the rest of us that worry them.

Well.  Thinking globally, we had deadly riots in Afghanistan when Newsweek reported on a questionable story of a Koran being flushed down a toilet.  Is there a possibility that KSM can think of something similarly inflammatory to relate, even as Americans continue to fight in Afghanistan?  I am surprised by Dr. Marshall's failure of imagination on this point (although I should note that the official implausible lefty talking point seems to have been that the riots were not linked to the Koran story; this line was also peddled by the Pentagon and I don't know how Dr. M finally positioned himself).

To summarize - should an earnest lib be worried that KSM can use the soapbox of a public trial to inflame the anti-Muslim sentiment that they believe is one sixteenth of an inch below the surface of the American psyche?  And shouldn't the rest of us be worried that KSM can use a public trial to inflame the anti-American sentiment that is often on display around the world?

I hope that helps.  Bet it doesn't. 

UTTERLY UNCONVINCING:  Dr. M suggest a parallel to the trials of the already-defeated:

Does anyone think that Nuremberg trials or the trial of Adolph Eichmann in Jerusalem in 1961 or the war crimes trials of Slobodan Milosevic and others at the Hague advanced these mens' causes?

Does anyone think Al Qaeda is as defeated as Nazi Germany was in 1945, or 1961?  I would look for parallels in the IRA trials, especially if I knew a darn thing about them - the Brits had some ghastly experience applying conventional criminal procedures there.  This famous Conlon trial is probably not a useful comparison (I don't think KSM fabricated his confession), but the IRA hunger strike and the death of Bobby Sands gave the British fits and is something KSM et al might emulate on the world stage.

Yet people are sure we can avoid all this? 

Comments

[clarice]

Perhaps he ought to study the Nuremberg trials and compare the procedures available to the defense there with those available to US criminal defendants in 2009 before waxing inelogquent.

In any event, I still haven't seen Lutherans foreswearing their lutefisk and hot dish suppers;Jews swearing off their pastrami ; Episcopalians giving up whatever boring thing gives them solace or Catholics flinging aside their incense and mitres to start marching on mosques and burning Moslems. It's about time this feared backlash gets put into some perspective..there's really been none.

[bgates]

civilian trials give the defendants too many rights and protections and thus create too big a risk they'll get acquitted and set free

An argument I saw on Chicago Boyz and Best of the Web was that precedents that come out of a civilian trial of KSM will apply to future domestic criminal defendants. In other words, if nothing that was done to KSM can justify his release, then everything that was done to KSM could be done to any other defendant.

[Rick Ballard]

Rev. Sharpton and Rev. Jackson can and have instigated riots that resulted in deaths - doesn't that count? Who knows what Calypso Louie might do...

Probably not against muslims though.

[Thomas Collins]

KSM is an enemy combatant. He doesn't deserve a regular trial, and nothing in our laws requires he get one. Case closed.

If in the trial one piece of evidence comes out that might in any way compromise our intelligence gathering operations, will Marshall acknowledge the rank ignorance of his approach? I won't hold my breath waiting for the acknowledgment.

When will the Marshalls of the world come down from their citadel of sanctimony to see the world as it is?

[mefolkes]

Clarice, this Norwegian Lutheran will gladly foreswear lutefisk, but I'll never give up hotdish!

[pops]

The main point is there is NO reason to try them in the US or in US courts. What makes it more ridiculous, everyone who says they should be tried here - says if they are acquitted, we will not release them (Obama, Holder, Durbin, Reed, etc.) all agree the trial is a shame because they will never walk free.

If I was the judge; I would ask the government attorneys and the AG, why are you trying these men, spending hundreds of millions of dollars and risking lives when you have no plan to ever let them go, even if they are exonerated.

Of course, this would be a great time for Dick Cheney, or his daughter to give a good money quote:

'President Obama appears to like bowing down to foreign leaders; its about time he bowed down to George Bush's superior strategy in dealing with these terrorists.'

[pops]

What Mashall, Obama and Holder don't comprehend is these people do not think like Nazis, or Milosevic. Their goal is to kill as many infidels as possible while losing their own lives..its called martyrdom.

No Nazi followers were looking for eternal life by slaughtering children.

Holder should have been asked, what plans have you set out if New York City has a half dozen Beslan massacres during this trial? Or suicide bombers on subway platforms, or a truck bomb driven into a high school.

All criminals want to live to benefit from their crime. All warlords, fascists leaders want to live to rule over their subjects.
But a Violent Islamist wants to die - it is a far different threat.

[Cecil Turner]

Does anyone think that Nuremberg trials or the trial of Adolph Eichmann in Jerusalem in 1961 or the war crimes trials of Slobodan Milosevic and others at the Hague advanced these mens' causes? Or that, in retrospect, it would have been wiser to hold these trials in secret?

Let me get this straight. He's arguing for an Article III court . . . and against tribunals . . . and two of three examples he gives for an acceptable outcome are tribunals? And the third, the Israeli prosecution of Eichmann, was hardly an epitome of a US federal court, and had other features more reminiscent of a tribunal (e.g., depositions from former SS honchos and the "crimes against humanity" charge). How is that supposed to be convincing?

[narciso]

That Ph'd in American colonial history only goes so far

[mockmook]

Aren't we changing our procedures here?

The accepted method for trying this act (accepted for 200+ years) is military tribunals, but now we are changing; isn't that capitulating to terrorism?

[RichatUF]

bgates-

I think it was either cathyf or JM Hanes that made that very same argument in a thread a long time ago (I think it might have been during the Libby trial when Fitzgerald applied a precedent from Yousef).

[matt]

in honor of Dear Leader's visit to the Middle Kingdom. LUN

[daleyrocks]

"On a more general level, however, since when is it something we advertise or say proudly that we're going to change our behavior because we fear terrorists will attack us if we don't? To be unPC about it, isn't there some residual national machismo that keeps us from cowering even before trivially increased dangers?"

Perhaps the good Dr. Marshall can refresh my memory about how widely published the Danish cartoons were in this country and how Yale University just stripped the actual cartoons out of book of which they were the subject. If sacrificing First Amendment freedom over PC fears of giving offense, violence and terrorism does not fit Dr. Narshall's bill of changing behavior, I'm not sure what does.

[pops]

You have to admit these feds are real smart cookies.

They look at GITMO and Thomson Illinois and they say, hell yeah, just put up another perimeter fence and we are good to go.

Everyone knows truck bombs are stopped cold by perimeter fencing....and they fail to explode...

[matt]

Marshall must have short term memory loss. I am coming to the conclusion that this affects a broad swathe of the Left.

With the recent apprehensions of barney Frank and Sully, I think we may be on to (rather than on) something.

[bad]

Marshall must have short term memory loss....With the recent apprehensions of barney Frank and Sully..

Don't look at me. I didn't say it...

[MarkO]

Again, I'll buy into the notion that there is no war when the thugs at the airport let me walk on with my friends who only want to walk down the concourse to say goodbye at the gate.

Until then, I favor overwhelming force.

[matt]

clarice;

do Miranda rights cover waterboarding?

[Terry Gain]

The trial is a sham with some very serious risks including jury intimidation (more on that at the end). For Obama, and it is his decision notwithstanding the charade by Hillary Clinton and others that it was Holder's, the risks are worth it.

The eyes of the world will be on this trial as KSM explains - to gasps and nods of disapproval from the media - how he was tortured and his civil rights trampled upon by the evil Bush.

This trial therefore represents the perfection of BDS.

When asked to explain why these 5 terrorists get a civil trial while those who attacked the Cole will be tried by a military commission Holder explained, as best he could, that these 5 attacked civilians.

On Fox today the incomparable Charles Krauthammer exposed this thinking as perverse. By the logic of Holder and Obama if you attack military institutions you get a trial before a military commission but if you commit the more egregious war crime of attacking civilians you get to tried before a jury with all the rights of an ordinary common criminal.

The logic of Obama might well result in the average terrorist concluding it makes much more sense to attack civilian targets but I suspect that none of this will dissuade David Brooks from continuing his ardent support for his Burkean hero, so long as the man (who is clearly not a joke) maintains that crease in his pants.

As for jury intimidation I'm predicting that people will be killed in an attempt to intimidate the jury. And of course the jurors will be marked for life. I say this because I don't expect the other side to sit out the trial. It seems to me that convicting these terrorist leaders has to be at least as serious a threat to their cause as displaying a cartoon of Muhammed.

[Extraneus]

Who would agree to be on this jury? By the way, will there be separate juries? Still, same question. Unless someone is intending to vote to acquit, nobody will claim to be unbiased during jury selection.

[Charlie (Colorado)]

Clarice, this Norwegian Lutheran will gladly foreswear lutefisk, but I'll never give up hotdish!

I'll volunteer to give up lutefisk too.

[pops]

The best result would be to stop taking prisoners.

Maybe some day Holder and Napolitano will get their wish and some right wing extremist will take out 30-40 GITMO detainees.

[Strawman Cometh]

When will the Marshalls of the world come down from their citadel of sanctimony to see the world as it is?

Good question. I wish it If it were only the Marshalls. Reminds me of the old joke: a conservative is a liberal who's been muggged. Dunno what it will take for our intelligencia to address the Islamists forthrightly. What do you think, Chaco?

[matt]

the other thing terry is that allowing KSM and the others a trial in a civil court makes a complete mockery of our judicial system.

due process was not followed by any stretch of the imagination and we did break several laws in holding him for so long and torturing him.

the Columbian drug lords, the nearest situation, I believe, were legally extradited and all of the rules were observed. Noriega, another possible relevant case, involved a rapid arrest and reasonably rapid trial process.

I don''t know if there is a law or set of laws on the books to cover these cases. As AG, Holder had a duty to outline his basic strategy and decision making process, which I have also not seen. Ulness of course there are nasty secret laws on the books put there by the evile Bush administration covering such cases.

This may be the biggest can of worms in US legal history.Don't be surprised if they walk.

[PD]

Their goal is to kill as many infidels as possible while losing their own lives..its called martyrdom.

I tend rather to think of martyrdom as having someone else put you to death for your faith. Something for which you and not someone else pays the ultimate price.

These guys take their own lives in the process of taking other lives, the latter being the primary goal. "Martyr" is too good a word for them. They're murderers.

[PD]

Who would agree to be on this jury?

Other Muslims might be only to glad to do so, so that they could vote to acquit their brothers in the faith.

[Sara (Pal2Pal)]

Anyone who agrees to be on that jury better take public transportation or have one of those remote car starters. Talk about having a target on your back for the rest of your life.

[peter]

The prosecutor could make a cogent argument (not that this would ever happen) that because of the doctrine of taqqiyah, all Muslims must be kept off the jury. I can enjoy the fantasy, can't I?

[narciso]

kamikazi is probably a better description of what we are facing here,

[Rick Ballard]

Kamikazi were directed at military targets. The murderous muslim scum are suicide terrorists, nothing better. They are "martyrs" only within the death/slavery cult.

I sure hope Holder enjoys the frank discussion of islam occasioned by Obama's decision. I'm not sure that reprisals against jurors (and/or family and friends) is probable. The ayatollahs, imams and mullahs have achieved quite a bit of their objective(s) (expanding islam's bloody borders) just by the President's decision to treat their murderous scum as worthy of protection other than that found in the Geneva Convention.

I would hope that our troops in Afghanistan respect the President's choice and make appropriate decisions regarding taking any risk in taking prisoners.

[Terry Gain]

Based on the way the authorities handled the obvious risk posed by Hasan one must anticipate that the prosecutor won't have the good sense to disqualify Muslim jurors. I would not be surprised by a hung jury.

[peter]

Some, and I emphasize some, of the judges of the SDNY, are pretty smart. I would think that they could, if they saw fit, refuse to exercise jurisdiction over this case, and remand it to the military forum. My understanding is that the judges are assigned randomly when the case is initiated. some of these judges, such as Kevin Thomas Duffy, might actually do the right thing. Quien sabe?

[RichatUF]

matt-

A better example would be the botched al-Arian and HLF cases.

[PD]

The prosecutor could make a cogent argument (not that this would ever happen) that because of the doctrine of taqqiyah, all Muslims must be kept off the jury. I can enjoy the fantasy, can't I?

Were I prosecuting a Muslim defendant, my first question would be, "Given the doctrine of taqqiyah that is part of your faith, why should anyone in this court believe a word you say?"

[peter]

I think also, that any District Judge in Manhattan would have to follow the local rule which states that an indictment must come down within 30 days of arrest, so this case has a good chance of getting tossed. I think this may even be less of a show trial, than a show motion. Holder and Obama could say, we tried to prosecute the case but a Republican judge threw the case out. This really is Pandora's box, but then again we knew we were in trouble on Nov. 5, 2008.

[Extraneus]

Good point, PD. Are they going to make them put their hands on the Bible and swear to tell the truth, so help them Allah?

[PD]

Ex, we need to have Keith Ellison come in to administer the oath.

[Charlie (Colorado)]

Dunno what it will take for our intelligencia to address the Islamists forthrightly. What do you think, Chaco?

I think you're a moron.

[Charlie (Colorado)]

Are they going to make them put their hands on the Bible and swear to tell the truth, so help them Allah?

Extraneous, are you under the impression that you must swear on a Bible to testify in court?

[Strawman Cometh]

Pithy

[PD]

Extraneous, are you under the impression that you must swear on a Bible to testify in court?

I'll admit my ignorance: What are the exact legal requirements?

[Sue]

PD,

You swear or affirm that the testimony you are about to give...I've never seen anyone, except on tv, use a bible. And I've been going to court for over 20 years.

[Terry Gain]

Given the practice of taqqiyah what guarantee is there that the state will get a fair trial by an impartial jury? I think Obama and Holder are out of their minds to take these unnecessary risks. Marshall's dismissal of the downside is unwise. He is unmindful of what happened to the last guy who told the Islamsists to bring it on .

[Terry Gain]

Given the practice of taqqiyah what guarantee is there that the state will get a fair trial by an impartial jury? I think Obama and Holder are out of their minds to take these unnecessary risks. Marshall's dismissal of the downside is unwise. He is unmindful of what happened to the last guy who told the Islamsists to bring it on .

[peter]

Glad you asked: Rule 603 of the Federal Rules of Evidence only require a witness to declare that he or she will tell the truth by an oath or affirmation in a form calculated to awaken the witness' conscience and impress the witness with the duty to tell the truth. Of course, to a Muslim, whose highest duty is to Allah (peanutbutterbuh) no such oath could fulfill that requirement if he felt that lying would serve Allah (poopbeuponhim.)

[Rick Ballard]

Perhaps Holder (with Ginsberg's concurrence) intends to import an imam to conduct the trial in accordance with shariah? That's what KSM wants, surely we should show our tolerance and openmindedness by giving it to him.

Say - maybe the President could give the opening statement to the imam and apologize for any inconvenience caused by using translators. He could offer the apology in Arabic and demonstrate his 'President of the World' status at the same time.

[Neo]

their bleak assessment of America's tolerance for religious and ethnic minorities

Given the Progressive intolerance of the "Christian Right," it's only logical to believe that all of America is equally intolerant.

[clarice]

Rick, we have to cling together here--we've been dropped into some mad, nightmarish world and we few, we band of brothers (and sisters) .well you know..........

[Barry Dauphin]

Maybe someone from the administration can bow to KSM to show cultural sensitivity.

[narciso]

I feel like sometimes,I'm in the remake of the Prisoner,

[AL]

“All criminals want to live to benefit from their crime. All warlords, fascists leaders want to live to rule over their subjects.
But a Violent Islamist wants to die - it is a far different threat.”
This is why word “cowards” does not apply to jihadists. They attack civilians and unarmed not because they afraid for their life if attacked would be able to fight back. It is “rational” decision, driven by desire to inflict max damage – in body counts and horror.
These animals are out of morality, and should be dealt with like rabied dogs. Not enjoy benefit of doubt, impartial jury, dedicated defender, or other privileges of common criminal in civilian court.

[Frau Wahnsinn]

Rick and clarice - This promises to be more "fun" than the original OJ trial. Will KSM come with his new look or will he clean up for the trial? (LUN)
A special prayer room and foot washing basins are being readied, and this will get out of hand quicker than you can say "He's the Sheik of Araby by Spike Jones and His City Slickers" -
I'm the Sheik of Araby,
Your love belongs to me.
At night when you're asleep
Into your tent I'll creep.

And the stars that shine above,
Will light our way to love.
You'll roam this land with me,
I'm the Sheik of Araby.

Oh, I'm the Sheik of Araby
And all the women worship me.
You should see them follow me around. Not bad.
Even wives of all the other sheiks,
They beg to kiss my rosy cheeks
And that ain't bad -- in fact, that's good, I've found. I'm a cad!
When I lay down to sleep
I'm counting girls instead of sheep
From my harem I can't scare 'em out. Why should I?
They're beauties from all races,
And some have pretty faces.
I'm the Sheik who knows what love is all about.

[Mike G in Corvallis]

I've read all of your objections, all of your enumerated probable bad outcomes of a civilian trial, and I couldn't help thinking ... Holder and Obama view these as FEATURES, not problems.

[daddy]

If I was one of these suspects I would demand that one of my Legal Advisors be Abu Mumiah Jamal, that radicalized, imprisoned cop-killer who's a darling of racebaiter's and ignorant college age Lefties. This would provide magnificent media spotlights and propaganda for anti-American Racists and haters of all stripes.

IANAL so I don't know if they are allowed to do such a thing, but it seems as if all this stuff is brand new and we're just making it up as we go along, so why not shoot for any means possible to create a circus and divide our society and continue the demoralization of America.

And I'd also invite Michael Moore or Oliver Stone to be my team members so they could come in with their movie cameras and start making this trial their next movie.

[daddy]

If I understand this logic correctly, we are still naively trying to win the hearts and minds of the world by demonstrating America's open and free legal system. Yet at the same time we have already announced to the world that if these murderers are found innocent in a Jury Trial, we won't abide by the open and free American Legal system, but will instead continue to hold them in prison indefinitely. So in effect, before we even start, we are announcing to all the common-sense, non-Lawyer's around the world, that our Legal system is a sham.

To uneducated foreigners who already hate us, this would seem to me to appear more like something Saddam would do in Pre-War Iraq, than in any hundred parallels drawn by the MSM about the Abu Ghraib prison photo's. How the heck is telling foreigners our legal system is a sham going to do anything but make them hate us and disrespect us even further? Beats me.

[Jane]

Daddy,

You got that right.

Are you following Ibama around the globe this week? That must be wrecking havoc on traffic. (I just read where he had a 71 vehicle motorcade in China)

[cathyf]

For all of those lefties who've spent the last 8 years keening on about what they imagine is in the Geneva Convention -- well, a war criminal's right to a military tribunal is pretty clearly stated in the GC. Where is the respect for international law? What will the world think of us when we take these guys out of their military trials, and throw them to a jury of angry New Yorkers?

[hit and run]

http://www.commentarymagazine.com/blogs/index.php/rubin/169752>Jen Rubin embraces the idea of Obama as "credentialed moron":

Well, there are several answers to my headline question [Why Isn’t He Better at Being President?]. First, the punditocracy confused credentials with knowledge or smarts. A Harvard Law degree does not necessarily confer on one the insight that even if we can try KSM in courtroom, we shouldn’t. Obama seems not at all familiar with the operation of free markets. He has only a dim grasp of how we won the Cold War. And it’s quite apparent that whatever credentials the president possesses, they didn’t enable him to perceive the motives of the mullahs.

...

And finally, as Ronald Reagan said, “The trouble with our liberal friends isn’t that they are ignorant; it is that they know so much that isn’t so.” In other words, they have a set of views at odds with the way the world operates (meekness will endear us to our enemies, terrorists will be impressed with American legal procedures), the American political scene (the public wanted a lurch to the Left), and basic economic realities (you can load mandates and taxes on employers without impacting employment). These views are a great impediment to a successful presidency.

[daddy]

Jane,

Am back stateside for a few days, but was in the Shanghai Market where the CNN reporter's got hassled probably a day or 2 before they got there. I know that market very well, and have my favorite shop and shop gals there I always visit. I hardly ever buy anything, (this trip simply a pair of sox) but don't mind dickering and feigning offense at such "high Prices" and playing the game and walking out angry and them then chasing me down and dragging me back in the shop and the whole bit which is mainly just a Kabuki comedy for all involved.

Some regular bootleg brands and items were not on display as they said the Police were in the market more prevalently than normal, so the standard stuff was hidden in all the usual places, and I didn't push it. I did spot 3 policemen hassling some storekeepers in a shop near the first floor entrance of the market, but stood off in the distance watching so as not to become part of the show. Overall there's about 200 smallshop stalls in this 4 story building. It's no mystery to me that these MSM guys wanted the Oba Mao paraphernalia, but would like to know which shop was being hassled over it, and would like to see when I visit my market girls next time, if they would fill me in on the ramifications to the shopkeepers at the offending store. I am confident the Shopgirls had no idea these CNN folks were anything but standard tourists shopping. Those consequences, if any, to those girls are the story that actually would be worth reporting on, so obviously it'll never be investigated at all by our totally incurious and oblivious CNNer's, and I don't think my regular gals will feel comfortable giving me the skinny on what really happened, but next time I return I'll at least ask, and if anything turns up I'll report it.