What Could Possibly Go Wrong?

Mr. Holder, testifying before Congress yesterday and consistent with the President’s comments the day before, declared his confidence that KSM and The Boys are guilty and will be executed. 

We all hope for that outcome; however you can be assured that the Islamist world is already pouncing on the statements by the Attorney General and the President as proof positive that KSM’s trial is nothing more than the show trial they have already predicted.  Rookie mistake gentlemen!

If this trial is supposed to demonstrate something positive about the American legal system to the Muslim world, a predetermination of guilt by its two senior legal officials will have the bloom off that rose in a big hurry and support the propaganda based stereotypes already well ensconced in the Muslim world.  “See we told you!” I hear Middle Eastern laughter as they absorb the message that non combatant terrorists on American soil will have better odds of surviving the murder of American citizens than if they engage American armed forces on the battlefield, but I digress.     

There are vagaries in our legal system; the game must be played to determine a winner.  Being both blessed and cursed by a status that does not include the title of lawyer we, nevertheless, venture forth reliant on common sense.

 What could possibly go wrong?

State of Mind:  Will KSM make the argument that due to enhanced interrogation techniques, he now suffers from a permanent mental deficit rendering him ineligible for a formal guilty verdict.  Could he be innocent by reason of insanity?  Well, yea, I think he’s crazy but no one asked.  The counter argument to that contention will be the extensive medical precautions taken during interrogation, but if that issue is introduced can we assume that other issues related to the interrogations can then be introduced as well?  If the interrogations required such extensive medical oversight can we assume that they were, in fact, brutal torture?  Why else provide all that medical oversight?  Will these contentions evolve to be a precedent at trial?  What will the cherry-picked “experts” say about KSM’s state of mind and can they create the context for reasonable doubt?  Will former public statements by KSM be judged as evidence for his lack of mental balance?

Change of Venue:  This issue has been much discussed, with a couple of little details left out.  Where might KSM find a jury of his peers?  The defense will no doubt argue that angry New Yorkers are not KSM’s peers.  Which venue might be appropriate?  There are a variety of Muslim enclaves in America; Northern VA, Detroit Mi, Minneapolis, MN and Southern California to name a few.  Will defense attorneys argue that those venues are the only appropriate ones?  It only takes one juror to hang a jury.

Jury Selection:  If you are an observant Muslim or one that, at least, sympathize with Jihadist ideology you believe that you owe no allegiance to “governments created by men”, only to Allah’s law.  Might you lie about your attitudes during the Jury voir dere?  As a Muslim you are not required to tell the truth to infidels.   

Intelligence Sources and Methods: Mr. Holder is firm in his assertion that security and intelligence issues have been carefully considered by his team.  We hope so, but Mr. Holder represents only one half of the legal equation.  Information has already leaked that the defense will, no doubt, hold the government accountable to; information that was supposed to be classified and is no longer. 

The Backdoor: Is this trial a backdoor method of getting the folks who performed the interrogations and structured the legal opinions associated with those interrogations into the courtroom, under oath?   Has Mr. Holder anticipated that this strategy will be employed by the defense with secondary benefits to him in terms of future prosecutions of the interrogators and lawyers who provided the legal opinions that were the basis for the interrogations?  His and the President’s intent on this issue has been clear for quite some time; is this the method for the madness?

The Government’s Lawyers:  According to Andrew McCarthy (prosecuted 1st World Trade Center Bombing) the same lawyers who are involved in preparing this trial are the guys that fought the government over military commissions at Gitmo, pro bono, including Mr. Holder’s former firm.  Mr. Holder scoffed at the very idea, during the Senate hearing yesterday but this dynamic has been reported for months and never refuted.  Mr. Holder refused to agree to Senate requests that he provide information on which members of his legal team were involved in those Military Commission motions during the Bush administration.  Mr. Holder agreed “to consider the request”.  That is bureaucratic speak for “not in this lifetime buddy!” 

Direct Testimony:  We already know that the Muslim Chaplin population at Gitmo was seriously tainted.  Will they be called to testify on behalf of KSM and The Boys?  Will they introduce testimony on behalf of the defense that sets the stage for the possibility of dismissal on technicalities? 

Validity: Will the process be subjected to long arguments about the fundamental validity of the proceeding?  Muslims of an ideology consistent to KSM and The Boys do not accept the idea of Infidels sitting in judgment on them.     

Discovery: Will the defense inundate the government with discovery requests that are designed to stretch the process and set the stage for the demand of classified materials?  Will the government be faced with the Hobson’s choice of putting the prosecution in jeopardy to the refusal to provide classified documents?

Appeal:  Is this trial simply about getting the result to an appeals Court, from the view of the defense?  If it is, the entire trial will be about motivating errors by prosecutors.  It is much easier to argue errors than to argue innocence.  We’ve all seen some very strange technical rulings from the courts; enough to give us pause about what the realities of this trial will actually be and what it is actually about.  

Who’s on Trial; Is KSM on trial or are Bush administration methods on trial?  Outside of political considerations it’s difficult to understand the motivation for moving KSM to a criminal trial when other lesser Jihadist lights are being committed to Military Commissions by Mr. Holder.  Politically motivated trials have some history of going very wrong based primarily on the idea that the individual on trial is simply a means to a political or ideological end. Hoping that is not the case, but………?!?

Yea, OK, what could possibly go wrong?