Legal News

KSM and the Law: A Quick Look at the Military Tribunal System

By Ashby Jones

Okay, so when all is said and done, it appears the Obama administration will likely back off of its initial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in New York federal court, opting instead for a military tribunal.

But it’s certainly not as if, having reached that decision, all of the Obama administration’s KSM troubles go away. Hardly. As WSJ reporter Jess Bravin reports on Monday, “the long-troubled military commission system has yet to resolve fundamental questions and remains under legal challenge.” (Click here for all previous coverage of the where-in-the-world-shall-we-try-KSM saga.)

A good example of how and why a military tribunal might prove tricky: Last month, Defense Department lawyers concluded that KSM and his cohorts can’t plead guilty to capital crimes in a military tribunal. That means the government might have to take the odd step of conducting a full trial and prove his guilt beyond a reasonable doubt, even after such a plea.

Regardless of where Mohammed ends up getting tried, a big issue is likely to be evidentiary — that is, just what sort of evidence will be let in to the trial. A 2009 law bars admission of statements taken under torture, or through cruel, inhuman or degrading treatment.

But what’s torture? What qualifies as cruel, inhuman or degrading? As anyone who’s watched “24″ knows, these definitions are often hazy.

But, Bravin reports, military judges use a sliding scale to decide when to admit statements, weighing the time and distance from the battlefield in which they were obtained.

For instance, statements a prisoner made upon capture by U.S. forces-an inherently coercive situation, but perhaps one that doesn’t involve torture-likely would be admitted, while those obtained after months or years of indefinite detention would be less likely to pass muster.

Full post as published by Law Blog - WSJ.com on March 15, 2010 (boomark / email).