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US to prosecute KSM in federal court

By Tung Yin

Not all Guantanamo detainees are going to face trial in an Article III (federal) court, but September 11 mastermind Khalid Sheikh Mohammed and his key associate Ramzi Binalshibh will.  President Obama's statement was:

?I?m absolutely convinced that Khalid Shaikh Mohammed will be subject to the most exacting demands of justice,? Mr. Obama said. ?The American people insist on it, and my administration insists on it.?

I have to admit, I'm not altogether certain what it means that KSM "will be subject to the most exacting demands of justice."  Does that mean that he will get the highest level of due process rights?  That would seem to be the sentiment behind trying him in a civilian court, as opposed to a military commission.  Yet, if that's the intent, "subject" is a strange way of putting it.  Subjecting someone to something connotes a negative, not a positive; otherwise, you'd say that the person was entitled to whatever it is.  Plus, is it fair to say that the American people want the highest level of due process for KSM?  I'm sure some do, but I'd be surprised if it's a majority, or even close to a majority.

So, if subjecting him to the most exacting demands of justice is meant to convey that, if guilty, he'll be treated harshly enough by the civilian criminal justice system, does it follow that this is "better" (more efficient, etc.) than a military commission?  I have a hard time seeing that the punishment will be more severe here.  KSM could get the death penalty in either forum.

The only thing that jumps out is that, because of the greater procedural protections and greater openness about Article III court trials, a conviction and death sentence in federal court will carry more legitimacy than the same verdict and sentence in a military court, notwithstanding President Obama's efforts to increase the procedural protections in the latter.

This suggests in turn that the Obama Justice Department believes that it can convict KSM and others despite the fact that KSM's initial confession was obtained through seriously coercive interrogation (i.e., 180+ instances of waterboarding) -- a fact that defense counsel will no doubt highlight.  It seems like the Obama lawyers may believe that KSM's subsequent re-confession, obtained at Guantanamo by new government lawyers without any coercion, is valid because he could have, but did not repudiate his prior confession.  We shall see.

Full post as published by The Yin Blog on November 13, 2009 (boomark / email).