Trial Tribulations

Thursday, February 11, 2010

The trial of Khalid Sheikh Mohammed has drawn heavy criticism from those who don't believe he should have the right to be tried in civilian court. Elisa Massimino, President and CEO of Human Rights First, and Peter Wallison, an Arthur F. Burns Fellow in Financial Policy Studies at the American Enterprise Institute, discuss the trial and the merits of civilian court versus a military tribunal.


Elisa Massimino and Peter Wallison

Comments [50]

Craig from New Jersey

"Hey, Craig from New Jersey--So you're suggesting that jurors would set KSM free out of dislike for Bush and Cheney?"

That's exactly what I'm saying. (Although 'dislike' is too mild; change to 'virulent hatred').

Feb. 11 2010 11:45 AM
kai from NJ-NYC

Hmmm...Rule of law vs. fuzzy "War on Terror" designation.

Oh yeah, I remember. It is impossible to have a war on "terror," when terror is tactic not an determinate entity on which a war can be waged. Therefore, terrorism cannot be considered a "war," but a criminal act carried out by criminally organized non-state actors.

Unless there is a "war on..." "specific Islamic militant groups" or more precisely, "those that hate and act violently against the American govt. on U.S. soil," the war terminolgy is not appropriate.

Also, it seems like there are a fair amount of Americans who fit the category above: T. McVeigh, Rudolph from the Carolinas, Unabomber, etc. I guess they should have been considered "enemy combatants", too.

Feb. 11 2010 11:26 AM
tom largey from sea bright new jersey

The Bush Torture Team probably made it impossible for KSM to be convicted in civilian criminal court. But even if the prosecution limits what KSM's defense team can introduce about KSM's treatment during his time at GITMO, it's very likely that the defense will be able to put American foreign policy and its interrogation practices as well. No matter how the prosecution tries to justify the treatment of KSM by his captors - KSM had been TORTURED. Even if KSM is convicted after a civilian, fully public trial think of the further damage that will be done to America's image. While the world has been made aware of America's torture of KSM, the furor over it has largely died out. And after Obama decided not to hold anyone accountable for Bush's Torture policies, except a few sadists that went beyond what the torture lawyers had authorized with their specious arguments, what sense would it make to allow KSM and his lawyers to depict in excruciating detail every second of every waterboarding session (all 170?) that KSM had been subjected to and other tactics that amount to torture that we may not know about? And KSM will describe how America's foreign policy and military adventures have hurt Palestine, Iran and Iraq citizens. And if somehow the prosecution gags KSM and his lawyers, someone will release tapes of KSM's proposed testimony to the press. After Bush led us to this delimma and Obama essentially protected Bush's Torture Team, what sense does it make to give KSM the platform in the biggest media city in the world to further tarnish America's image? I'm not an expert on military tribunals and justice, but I suspect that KSM wouldn't have as big a platform to do more harm to America.

Feb. 11 2010 11:24 AM
Tom Cugliani from brooklyn, ny

The issue and way forward is clear; the United State is not formally at war with a nation, (was there a congressional declaration of war that I missed?) rather a violent ideology enacted by a terrorists organization who are not an army representing a sovereign state. If you have a problem comprehending this, think of the mafia, which styles itself as “soldiers” but who in reality are criminals.

The lawful process in the case of KSM is to try an individual by a criminal justice system, and not a military tribunal.

Further to this, a no win result be it either a military or criminal process resulting in the execution of KSM, will create a martyr of him. Conversely an unlikely acquittal could make a travesty of our legal system.

In America, we have the confidence in a criminal judicial process that will confer the correct and appropriateverdict and not unwittingly glorify terrorism.



Feb. 11 2010 11:10 AM
Brooklyn Jim In Brooklyn from Brooklyn

Hey, Craig from New Jersey--So you're suggesting that jurors would set KSM free out of dislike for Bush and Cheney?

Give me a G.D. break.

Feb. 11 2010 10:58 AM
Craig from New Jersey

What diminishes 'faith in the justice system' is the potential presence of an egomaniacal or ideologically driven judge (such as the infamous "Turn-em-Loose Bruce") or, even more likely, ideologically-driven jurors who would delight in sticking it to Bush/Cheney regardless of the consequences to the public. Holder's belief that failure is not an option is naive and scary. Failure is a better than 50% chance.

Feb. 11 2010 10:53 AM
Michael from Manhattan

The Eichmann trial took place in an open court of law. The greatest value of that trial was not his hanging; it was the display of a society committed to the rule of law. The greatest value of the KSM trial will not be his conviction (or, even his acquital); it will be the display of our commitment to the rule of law. That we tortured him is an integral part of that commitment. I want the world (and the citizens of this country) to see that we can be honest about our mistakes. That is how we will project our values and keep America safe(r).

Feb. 11 2010 10:45 AM
Sylvain Leroux from NYC

Mr. Wallison wants to take civilization back to the middle ages. Terrorism is a police not a military matter.

Feb. 11 2010 10:45 AM
Mark from JC, NJ

I think terrorists should be treated as criminals.

Why give them the legitimacy and elevate them to the same status as our military. These guys are no different than pirates.

I think civilian trials and mirandizing (on a separate issue) show why our society and the respect of law is superior to their nilhilistic alternative.

Feb. 11 2010 10:41 AM
john from office

I saw bodies hit the ground on 911, they deserve no less treatment.

Feb. 11 2010 10:41 AM
Alice L. Knopf from NYC

Re the discussion today about civilian vs. military tribunals, the guest from the American Enterprise Institute should have been asked to justify the 300 or 150 (I've read both numbers) civilian trials of terrorists during the Bush administration vs. the 3 military tribunal trials. He should have been asked to tell us what's the difference. An important question missed.

Feb. 11 2010 10:40 AM
john from office

Mike they do it already, hello, where have you been. These are islamic nuts, who want to die. So let them die. Torture is not a problem for the average american, let put it to a vote, torture would win hands down.

Feb. 11 2010 10:39 AM
Taher from Croton on Hudson

26] john from office.
Remember this john from office; the other side will also consider your notion. American soldiers, including civilian tourist, can be kidnapped put on some type of “trial” executed and a clip is put on YouTube. So the notion is nuts.

Feb. 11 2010 10:35 AM

We shouldn't let him tell the world he was tortured because we're embarrassed about it? We shouldn't have done it. We should be ashamed, especially because the people who did it have gotten away with it. But it's not reason not to give the guy a fair trial.

Feb. 11 2010 10:33 AM
Michael from Rockville Centre,

Terrorist are not Military.They don't wear uniforms,they don't represent any one country.
They are common criminals,try them as such.

Feb. 11 2010 10:31 AM
Russell from Manhattan

Cole was an attack in foreign waters on our servicemen and women.
KSM, although planned the attack on foreign soil, conspired to commit the crime here.
This Peter fellow makes an equivation that completely ignores the obvious differences.

Feb. 11 2010 10:31 AM
Mike from Tribeca

Re john from office: your comment completely contradicts itself. You have become the enemy you despise.

Feb. 11 2010 10:30 AM
Taher from Croton on Hudson

To have military trials for the criminals that perpetrated 911 is to tell the world that America is a constitutional democracy only in name. That America is now a militarized state. The consequences are enormous for the United States.
It’s the ambition of idiot politician who are not leading anymore but simply following the lowest common denominator that is driving this insane notion of military trials.

Feb. 11 2010 10:30 AM
mary hallet from staten island

I'm disturbed how Mr. Wallison refers to the death penalty as a desirable punishment with the words "that's what many would like to see." When is American Justice supposed to be about what people would like to see? And what purpose would it serve, given the fact that religious fundamentalists seek martyrdom and beliefs in instant rewards in an afterlife? And would it deter people given to suicide attacks? It doesn't even deter murderers in our own country.

Feb. 11 2010 10:29 AM
Robert Galli from Edison, NJ

Please explain to Peter that our civil law system is not involved - rather, our CRIMINAL JUSTICE system is. Civil law is significantly different from criminal under our system.
RC Galli

Feb. 11 2010 10:29 AM
Amy from Manhattan

The fact that Khalid Sheikh Mohammed was tortured doesn't mean he can't be tried in a civilian court, only that any evidence obtained by torture is inadmissible in court. Evidence obtained by constitutional means can still be used against him, & from what Iv'e heard he said plenty before he was waterboarded (& clammed up after).

Feb. 11 2010 10:29 AM

Here is the problem with Mr Wallinson's point of view.... you give these CRIMINALS "allegedly".. some kind of special status you automatically give them some credence. Treat them as what they are CRIMINALs.

Feb. 11 2010 10:29 AM
Mike from Tribeca

Essentially, Mr. Wallison is saying those who hold "peculiar ideas about the United States" should be silenced and not be allowed to have their say in court? His ideas are overly simplistic.

Feb. 11 2010 10:29 AM

It doesn't matter what the Sarah Palin crowd wants to do with these guys. Our laws are meant to prevent mob rule. You know, the guy might be innocent. That's why he gets a trial. He's innocent until proven guilty.

Are you really going to believe Dick Cheney? He lied to get us into war. He lied about outing Valerie Plame. He lied about not torture. Who knows what's going on with this guy.

Feb. 11 2010 10:26 AM
Robert Galli from Edison, NJ

I have faith in our criminal justice system. I agree these 'terrorists' are not soldiers in the classical sense of the word but are, indeed, criminals - having commited what I consider to be crimes (hijacking aircraft, premeditatedly destroying property resulting in the deaths of thousands, etc.). If, as some fear, there is an acquittal, perhaps that will wake us up to several important issues: (1) we are, indeed, a nation of laws and adherence thereto (at least in the long run) and (2) perhaps we'll exhibit better behavior (i.e. follow Geneva Convention guidelines) if we involve ourselves in future excapades. We continuously tout our 'best-in-the-world' union, adherence to the rule of law, and, in my view, try to impose our systems onto others. I sure hope our recent behavior ('02 - '08)is not passed on.

With more time, I could be more brief and articulate.

Robert C. Galli
Edison, NJ

Feb. 11 2010 10:26 AM
George from Astoria

Republican politics, stay out of my city!
Fear mongers.!
Why do we even discuss these clearly illogical politically based dipsutes.. the real question is why do we torture? and who should be punished for it.. The facts are clear,. Military tribunals dont work. why is this still up for debate.

Feb. 11 2010 10:24 AM
john from office

The average american, outside of the upperwest side of Mahattan, does not care about the waterboarding, torture or the fairness of the trial for these enemies of our nation. They deserve to be treated like they would treat us, remember the beheading of Daniel Pearl, because he was an amercian and a jew. They should be shot on the spot and buried in pigskin. That would be a faithful death, deny they heaven and the virgins.

Feb. 11 2010 10:23 AM
Ronald Janssen from Lindenhurst, NY

I'm listening as well as I can to all the voices speaking on this issue, but it baffles me that those who support civil trials and vaunt them as a pillar of social morality are also willing to say that it's already certain that a guilty verdict will be returned. And if it is isn't certain, there are many other ways to detain the prisoner. Isn't it really a matter of mass therapy that's being worked out here? Not really a matter of justice or injustice, but rather just us trying to feel good about ourselves?

Feb. 11 2010 10:22 AM
Jim Crutchfield from Long Island City

It's astounding that your guest can assert that we can hold the moral high ground by ruling out acquittal from the outset. If Mohammad was tortured, the moral thing to do is to acquit him and prosecute his torturers. We lost the moral high ground when we decided to torture people. The way to regain it is to prove that we are a nation that abide by the rule of law.

Feb. 11 2010 10:20 AM
hjs from 11211

how many terroristS have been convicted using military commissions?

Feb. 11 2010 10:20 AM
Edward from NJ

If we're concerned about "giving him what he wants", shouldn't we take the death penalty off the table?

Feb. 11 2010 10:20 AM
Robert from NYC

I have no problem with the trial being held in Manhattan in a non-military court. And for those who might say but I don't live in the area where the court is located, then let me offer up my apartment as the courtroom as long as they don't mind my sitting around in my underwear as it proceeds. What is happening to this country, we (they) drag out the Constitution whenever it's convenient just as those religious zealots pull out the bible or a particular verse from it when it's convenient.

Feb. 11 2010 10:20 AM
Patrick Batchelder from Ironbound section of Newark

I spent a year as a civilian in Baghdad. Unless you experience it first hand, you can't understand this culture. It doesn't matter how we convict these prisoners, in their own culture they will always be seen as warrior. We will only be making ourselves look good to the Western world.

Feb. 11 2010 10:20 AM
RLewis from bowery

What he wants is to be treated like a warrior with an army. He's not! He's a criminal.

It's not about what he wants. It's about what it says about us as a nation.

Feb. 11 2010 10:20 AM
Nathaniel Wright from Brooklyn

From what I'm hearing from your guests, the question seems to be: What's the best way to kill KSM? If that is the only concern for your guests, why do they want a trial at all?

Feb. 11 2010 10:19 AM
Brooklyn Jim In Brooklyn from Brooklyn

I don't get it. If the evidence is so overwhelming against KSM, why should there be any problem getting a conviction? And if the evidence isn't there, what does that mean?

Also, I'm getting really tired the show being used as a showcase for Republican concern trolls. Brian, maybe you should try calling Peter Wallison on some of his points instead of letting him go unchallenged. Or at least get guests on the liberal side who can argue on their feet.

Feb. 11 2010 10:19 AM
Tony from Santa Clara, CA

Isn't that the whole point of a fair trial that, yes, he may be acquitted, yes we may lose.

But bring it on, give him lawyers, read him his rights, give him an open, fair trial. Yes, we may lose, but we'll do our best to convict him.

Feb. 11 2010 10:18 AM
Sandra from Manhattan

The President should give more details to the American people about WHY he wants it in NYC and that is how the BUSH administration handled other terror trials. Also, explain to us why a military trial will not be beneficial. Unfortunatly, he is not doing an excellent job providing a thorough explanation to us. In my opinion, if we can surely get a conviction/penalty in a military trial then do it there. NYers do not want more potential problems. I dont beleive these terrorist should receive the privilege of being tried by the AMerican justice system. We can have a policy to now,unlike the Bush administration, to try them in military court.

Feb. 11 2010 10:17 AM
Matt from New York

Agreeing with R. Lewis. It seems like this breaks down to: the US tortured somebody, a trial would bring that out, the plaintiff would have to be acquitted, and republicans would first win the Senate and then the White House.

Feb. 11 2010 10:16 AM
Jim from Brooklyn

I think the trial should be in New York.
We are that strong.

What about the Airforce Base in Plattsburg as a trail site?

We need the Jobs up there and there are some people with defense experience that could work security, like retired 10th Mountain Division soldiers.

Feb. 11 2010 10:15 AM
Randall from Astoria

KSM masterminded the 9/11 attacks, but not from the NYC metro area. We should certainly try him in a civilian court, as to try and retain any sense of moral justice involved in trial proceedings.
Because we try him in a civilian court, does not mean we must try him in NYC, to the extreme inconvenience and excessive burden of the citizens of the city.

Feb. 11 2010 10:15 AM
Merrill Clark from NY, NY

KSM was water-boarded (only) 183 times. How does he not suppress his evidence as a result of torture?

Feb. 11 2010 10:15 AM
RLewis from bowery

"do we enjoy being kept in a state of terror?"

Where we try KSM is not going to change that one bit. That ship has already sailed with Bush's fear-mongering.

Feb. 11 2010 10:15 AM
RLewis from bowery

Did that guy just say that we've already been criminals ourselves, so why not just continue acting like a lawless natiion with no morals?

Feb. 11 2010 10:13 AM
Aquene from Manhattan

People should be tried by a jury in the community in which their crime was committed. The trial of KSM should take place here. We must honor our democratic systems, not destroy them out of fear.

Feb. 11 2010 10:12 AM

There is no reason that they can't be tried as criminals, except that they've been tortured.

Feb. 11 2010 10:12 AM
C. Tennyson from Ridgewood, New York

Civilian court is where we try criminals and that's what these people are - criminals, bandits, murderers, NOT soldiers. The place to try them is here in New York, where we lost thousands of our neighbors. We earned that right. If lower Manhattan is not a practical venue then hold the trial on Governors Island or on a battleship in the middle of the harbor. This is America - we can figure this out.

Feb. 11 2010 10:11 AM
hjs from 11211

do we enjoy being kept in a state of terror?

Feb. 11 2010 10:11 AM
RLewis from bowery

What is it that people don't get about - THEY WANT TO BE MARTYRS? Treating them like warriors in a tribunal plays write into their hands and validates them as a legitimate force. Trying them in a criminal court treats them like the thieves and low-lifes that they are.

Feb. 11 2010 10:11 AM

How is it that the estimate of a 1 Billion dollar cost for the trial never got any scrutiny when it was so clearly just invented?

Feb. 11 2010 10:10 AM

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