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KSM’s Circus

Justice or a Show Trial?

Khalid Sheik Mohammed’s attorney has his hands full.

Idahoans who know Boise criminal defense attorney David Nevin, a quiet, well-spoken, extremely thoughtful fellow, will instantly identify with the challenges he confronts in a courtroom in Cuba as he attempts to mount a defense for the world’s most notorious terror suspect. Nevin, a University of Idaho law grad, would be the first to acknowledge that the sense of fairness that is supposed to be at the heart of our adversary-based judicial system, coupled with a commitment to the “rule of law,” is at the very core of what Americans mean when they think about the concept of justice.

Yet, the circus-like atmosphere that prevailed last Saturday during the long awaited arraignment of KSM and three other defendants seems to have little to do with the American system. “The system is a rigged game to prevent us from doing our jobs,” Nevin complained at the end of the 13 hour proceeding last weekend conducted before the military commission that will, probably years from now, put Khalid Sheik Mohammed on trial.

Specifically, attorneys for the terror suspects can’t have anything like a normal attorney-client relationship with the men they are supposed to be representing. Everything that KSM says, even to his lawyer, is apparently being considered by the government to be a state secret. And torture, specifically the allegation confirmed by the CIA that KSM was waterboarded 183 times, and that torture may have led to a confession is, so far, off-limits in the proceedings.

“The government wants to kill Mr. Mohammed to extinguish the last eyewitness to his torture,” Nevin said, as reported by McClatchy’s Carol Rosenberg.

Nevin is living out the highest calling of the American criminal justice system; the notion that everyone – even the man accused of plotting to bring down the twin towers – deserves a fair trial, a chance to hear all the evidence against him and to introduce evidence, including evidence of torture, if it may help his defense. The trouble for Nevin is simply that he’s been asked to supply an adequate defense for his client in an environment of secrecy and possible torture, while the awful wounds of 9-11 still haven’t begun to heal.

Here’s the real rub: the government of the United States wants to bring these guys to justice – we all do – but for largely political reasons has determined it cannot trust the normal, open American judicial process to work as it should. A decision by Attorney General Eric Holder to conduct the legal proceedings in a New York federal courtroom ignited a firestorm of protest, the Congress got involved and the Obama Justice Department backed down. The military commission with its secrecy, determination to protect “state secrets” and Kafkaesque rules is now what David Nevin and the other lawyers at Gitmo must deal with.

One of the toughest critics of the Gitmo process is the now-retired Air Force Colonel and one-time terrorist case prosecutor, Morris Davis, who resigned his commission and retired rather than go along with a Pentagon ruling that waterboarding was permissible in dealing with terror suspects.

“After a decade of starts and stops and revisions and failures, the system is already presumptively discredited,” Davis said in an interview recently with the Los Angeles Times. “That the apologists for the commissions say they are essentially the same, or virtually the same, or nearly the same as federal court — the fact that they have to put a qualifier on it proves it is not the same.”

Davis predicts that KSM will eventually be executed, a martyr’s death he wants, after wringing the maximum propoganda value from the proceedings. “If we execute him, we will be giving him exactly what he wants,” Davis said.

Our government’s zeal to protect secrets almost always leads to bad outcomes. The desire to protect the secrets tends to pervert the very process that the secret allegedly protects. In the Gitmo cases, the most likey outcome is conviction of KSM and the others for the unspeakable crimes of September 11, 2001 and, while that might feel like justice it also might look to the rest of the world as an outcome derived by means of a distorted and unfair process.

The fundamental strength of the United States, including a justice system that has rules, procedures and methods to protect even the guilty, ends up looking to our enemies like an updated Stalin-era show trial. If the 9-11 mastermind is guilty – and I have no doubt he is – then show the world the evidence in open court. Try him as the suspected criminal he is, not some super human hoarding great secrets, and use the strength of the American justice system to show just what kind of man he is.

We must have a system of justice that is better than those individuals to whom we apply it. It’s doubtful these commissions will pass the test of history and let’s hope we don’t regret that failure to live up to our own best standards.


Slippery Slope

The Ultimate Act of the Imperial Presidency

At least since 1933, when Franklin D. Roosevelt actually suggested in his first inaugural address that he might need to ask Congress for what he termed “broad Executive power to wage a war”  in order to respond to the economic ravages of the Great Depression, every president – every president – has sought to expand, and has expanded, the authority of the nation’s Chief Magistrate. FDR’s critics suggested he really wanted dictatorial powers or, seemingly more benignly, a vast concentration of power in the hands of the president.

In terms of threats to the Republic and erosion of the basic strengths of the founding document, the steady, unchecked expansion of presidential power dwarfs any other complaint the Tea Party or anyone else has about the country slipping from its Constitutional moorings.

While the impact of Roosevelt’s accumulation of presidential power is still widely debated – it’s clear FDR stopped short of becoming a dictator – there is no doubt the modern presidency vastly expanded in scope from what the founders envisioned during his presidency. FDR set the country, and the White House, on the course to what Arthur Schlesinger, Jr. came to call “the imperial presidency.” There has been little let up since.

Harry Truman in 1952 nationalized the steel industry, or tried to, and Dwight Eisenhower planned and John Kennedy implemented, in perfect hindsight, a crazy plan to invade Cuba.

Lyndon Johnson put the patina of legality on the Tonkin Gulf Resolution in 1964 that gave him license to expand the American war in Indochina with a formal declaration of war. As we now know the resolution provided the Executive Branch with a “legal” fig leaf to expand the war on LBJ’s own motion, which, of course, he did. It’s worth noting that this particular expansion of presidential power took place during an election campaign.

Later in the 1960’s, Richard Nixon expanded that awful war into Cambodia and attempted to do it secretly. Ronald Reagan traded arms for hostages, secretly in the 1980’s. George W. Bush, history will record, used the full and always expanding power of the Executive Branch – including cherry-picking intelligence – to make the case for the invasion of Iraq. The march goes on.

Mostly lost in the daily drama of the Republican presidential campaign, the Occupy Wall Street demonstrations and the on-going economic slump is what may turn out to be one of the most profound expansions of presidential power ever.

On October 14, 2011, the President of the United States of America authorized an unmanned drone strike designed to kill an American citizen living in Yemen. It worked. New Mexico-born Anwar al-Awlaki, usually described as a radical Muslim cleric, died in the strike in a remote corner of the Middle East along with several other alleged Al Quada operatives. Killed along with the cleric was his Denver-born teenage son, 16-year-old Abdulrahman bin Anwar Al Awlaki.

The Obama Administration has justified the killing of U.S. citizens – the real target was the elder al-Awlaki – by producing a still secret legal memorandum that was detailed, to some degree, in a New York Times article on October 8.

The Times reporting noted: “The secret document provided the justification for acting despite an executive order banning assassinations, a federal law against murder, protections in the Bill of Rights and various strictures of the international laws of war, according to people familiar with the analysis. The memo, however, was narrowly drawn to the specifics of Mr. Awlaki’s case and did not establish a broad new legal doctrine to permit the targeted killing of any Americans believed to pose a terrorist threat.”

Narrowly drawn. Just broad enough to justify, with no formal legal process, no second opinion, no public accounting and in apparent violation of exisitng law, the killing of an American citizen.

The Times noted in a subsequent editorial that the Obama Administration has refused to release the legal analysis or even admit on the record that the analysis exists. There is no information available on how the administration chose the target or why.

OK, I hear you: this guy Awlaki was holed up on Yemen plotting attacks against the United States. Apparently he couldn’t be captured. What are supposed to do – let him wander around presenting a danger to us?

Legitimate questions all that the administration should be answering, but as we prepare to grant the benefit of the doubt to the president in this dangerous times, consider this one chilling line from the Timeseditorial: “The decision to kill Mr. Awlaki was made entirely within the executive branch. The memo was not shared with Congress, nor did any independent judge or panel of judges pass judgment. The administration set aside Mr. Awlaki’s rights to due process.”

It’s been said that hard cases make bad law and this is a hard case. Awlaki was a bad guy and maybe the country is safer without him. Still the plain and honored language of the Fifth Amendment to the United States Constitution helps define the American system of justice from so many others in the world that we rightly and regularly condemn. Amanda Knox’s experience in Italy comes immediately to mind. America, it is said, is a nation of laws. The rule of law matters. The Constitution matters.

Just to refresh your memory, the 5th says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.’

Due process of law is a fundamental tenant of American jurisprudence. It can’t under any circumstances be simply dismissed,  and secretly so, by two lawyers writing a memo somewhere in the Executive Branch.

Gerald Ford was the first American president to explicitly say our country would not engage in assassinations. American involvement – make that leadership of – efforts to kill Fidel Castro, in part, prompted Ford’s Executive Order. The logic is pretty simple. We target someone for death and the bad guy’s friends are likely to retaliate, which is, of course, exactly what is being threatened.

Without some mechanism, outside the hands of a secret group inside the Executive Branch of the federal government, able to judge the wisdom, necessity and legality of such drastic action, we are left to entirely take the word of the president.

The framers wrote the founding document knowing that the sainted George Washington would be atop the Executive Branch of the federal government. They wrote in protections like the Fifth Amendment precisely because the American system was built on laws, not men. Even Washington’s rectitude wasn’t adequate for those founders to give too much power to any one man.

Congress is, at least in theory, a co-equal branch and should have been since the 1930’s pushing back against more and more power in the hands of the president – every president. Does anyone there care to even ask the question: can a President of the United States really order a killing without so much as even asking around?

Every expansion of presidential power beyond what the Constitution provides is another foot down on the slippery slope. That slope is steeper by the day.