In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.
At the end of an article talking about how trying KSM et. al. (the others that will be tried criminally also rans at this point in most of the coverage) will lead to various rulings perverting the rules, a criminal defense attorney tosses that in. The italicized portion is my emphasis. Let's not totally bury the point that sort of ruins the buzz of the rest of the article for some people. Even with all of that, it STILL is the best thing to do. Such is the judgment as well of this op-ed by Steven Simon, Adjunct Senior Fellow for Middle Eastern Studies.
Does this mean it will be pretty? No. But, the realistic supporters of the choice will unlike many on the other side play fair -- they will note the problems but not ignore that the alternatives leave much to be desired as well. The "toll" will occur somehow no matter what. If these people are tried by military commission, they will have lawyers too and the bottom line will likely be a way to paper over torture and other mistreatment. Bad law can result there for future cases too. Not that bad law (at times ignored when new litigants are involved, see also Bush v. Gore) is a stranger to other controversial trails. Mobsters, for instance, have a special kind of justice.
I also think many Americans are honest with themselves here. This "great victory" business is good for the naive and public statements by politicians, but others know better. And, we know even your OJ had far from "ordinary" criminal procedure.* So, who really thinks these guys will? Seriously, let's cut the sarcastic disdain. We have a lousy situation here, and whatever is done will be imperfect, a mess even. Too many people to deal with, torture and other stuff making it even harder. Many Democrats (like Sen. Webb and his Pearl Harbor references) are not helping much either. As to Sen. Graham, see here.
So, we can at best hope for a far from great victory. By now, I think most of the country realizes this, but lots of b.s. commentary will fill the airwaves. This doesn't mean the path taken by the Obama Administration, especially some of their too gung ho assurances of success (enemy combatants can be held without criminal convictions, but their freedom of movement is not as much as their rhetoric implies) and talk about using whatever works best to convict is too admirable (see, e.g., Glenn Greenwald today). But, let's not be overly shocked about gambling in Casablanca. And, imperfect justice is not the same thing as sham justice.
Going to be a lot blather, helping people forget the old dispensation was to leave these people in holes somewhere, a path even Bush found unworkable at the end.
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* Some of the complaints have a real naive feel to them. For instance, the cry that having these defendants tried in this way and location is a "show trial" [just like in Russia, right?] and selectively chosen because it is the best way to get a conviction.
Forum shopping and prosecutorial discretion? No! When terrorists are not involved, prosecutors would never do that. They would not selectively choose the people who would best have a shot at being prosecuted. They would never ahead of time assure victory -- it is always "innocent until proven guilty!" here.