Situational Justice

Charlie Savage on the Obama administration’s plans to try Khalid Sheikh Mohammed and four of Mohammed’s alleged accomplices in federal court in New York City — and to use the military tribunal system at Guantanamo to try five other high-profile detainees. This decision is part of a strategy Obama revealed in his National Archives speech last May:

Shortly after taking office, Mr. Obama also shut down the Bush administration’s military commissions. But in a speech at the National Archives in May, he said his administration was considering reviving some form of the panels, which have more flexible standards for handling evidence gathered in battlefield settings and through classified methods, to handle especially difficult prosecutions. He promised to make the commissions more fair with extra safeguards for defendants.

Still, the prospect of giving different detainees different kinds of trials, based on where government officials think they can win convictions, has led to criticism by some human rights and civil liberties advocates.

Glenn Greenwald calls this ” ‘the-state-always-wins’ system of ‘justice’ “:

So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court.  Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials:  namely, those whom the Government is convinced ahead of time it can convict.  Others for whom conviction is less certain will be accorded lesser due process:  put in military commissions, to which most leading Democrats vehemently objected when created under Bush.  Presumably, others still — those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power.

A system of justice which accords you varying levels of due process based on the certainty that you’ll get just enough to be convicted isn’t a justice system at all.  It’s a rigged game of show trials. …

That fine legal mind, Andy McCarthy, reasons that there is no need for KSM to even have a defense attorney because — wait for it: He has no defense. He does not need a trial because he’s guilty (emphasis mine):

Let’s take stock of where we are at this point. KSM and his confederates wanted to plead guilty and have their martyrs’ execution last December, when they were being handled by military commission. As I said at the time, we could and should have accommodated them. The Obama administration could still accommodate them. After all, the president has not pulled the plug on all military commissions: Holder is going to announce at least one commission trial (for Nashiri, the Cole bomber) today.

Moreover, KSM has no defense. He was under American indictment for terrorism for years before there ever was a 9/11, and he can’t help himself but brag about the atrocities he and his fellow barbarians have carried out.

So: We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda’s case against America. Since that will be their “defense,” the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it.  … It will provide endless fodder for the transnational Left to press its case that actions taken in America’s defense are violations of international law that must be addressed by foreign courts.

Got that? Andy McCarthy — a former federal prosecutor — demonstrates his legal expertise: Pleading guilty and asking to be executed obviates the need for a trial. That’s how it works in our system, right? You plead guilty to murder; you forfeit the right to a trial, and go straight to the gurney to get your lethal injection. And look: KSM even confessed — after he was waterboarded 183 times in one month — to beheading Daniel Pearl, and to plotting to blow up the Brooklyn Bridge, and to pretty much every other terrorist plot in the previous 10 years. Why would he lie about a thing like that? He confessed! He’s guilty! He did it! All of it! Kill him!