The Trial of Khalid Sheikh Mohammed: Litigation as War by Other Means

The Prussian General Von Clausewitz once said that war is politics by other means. Khalid Sheikh Mohammed (KSM) and his four 9/11 co-defendants who will now be tried in a civilian Federal court in New York City will seek to continue their war against the United States by means of their criminal litigation. According to numerous news reports, one of the lawyers for the five men said they intend to plead not guilty and use the trial to provide "their assessment of American foreign policy." This in comparison to the guilty plea KSM was prepared to enter at his military commission, a justice system the U.S. Attorney General supports for other members of al-Qaeda but not for the 9/11 mastermind.

Unfortunately, this is one of the many reasons that KSM’s case has no business being in a Federal court, but instead belongs in a military tribunal. In a recent USA Today Op-Ed, I outlined why a civilian trial for KSM could undermine homeland security and strain war fighting operations by merging the rules of civilian law enforcement with battlefield operations. In the same regard, the trial will also strain the criminal justice system in ways supporters of this trial may not have considered.

As part of his litigation as war by other means strategy, KSM will seek to have his trial last for several years and to ensure that KSM and his legal team will surely raise many profound constitutional questions several of which could end up in the U.S. Supreme Court. These include, when did KSM’s constitutional rights attach and what triggered those rights attaching? What, if any, consequences are there for the government’s alleged violations of those rights? Such rights include his right to remain silent, his right to counsel, his right to a speedy trial and his right to be free from government conduct that “shocks the conscience” etc.

The “shocks the conscience” issue is especially rife with potential pitfalls for the current Administration. Can the U.S. government prosecute an individual the government has claimed to have tortured? The current Attorney General has said publicly that water boarding is torture. The U.S. subjected KSM to water boarding as many as 183 times according to several reports. KSM will therefore argue that America tortured him, and that torture is the very definition of conduct that shocks the conscience. As such, the case should be dismissed as a repudiation of such conduct and a vindication of the right to be free from it. The government may counter that none of the information gleaned from interrogations that violated any of KSM’s rights will be used at trial to convict KSM, and that his treatment is a matter under separate investigation and possible prosecution.

The U.S. Supreme Court has never addressed such a case head on but there are cases that intimate that even if the government does not use evidence at trial obtained via conduct that shocks the conscience, the case can nonetheless be dismissed. Here, I believe the Justice Department is banking on the fact that KSM is such an unsympathetic defendant and the 9/11 attacks are such a heinous “crime” that the courts will find some reason, any reason - procedural or otherwise - to find in the government’s favor on such a claim. If some courts don’t, the Obama Administration may end up having to defend the enhanced interrogation techniques, including water boarding, used against KSM, insofar as it relates to preserving the case against him. There is a saying that “hard facts make bad law” and the KSM trial could become the poster boy for that phrase.

As several others have noted, if all of KSM’s motions are denied from change of venue (if KSM does not have a claim here what criminal defendant could ever argue for a change of venue) to dismissal, it may set a terrible precedent for the rest of us. After all, these are our constitutional rights and by bringing KSM to New York the Attorney General has made him one of us under the law. If the government prevails against KSM on all his constitutional challenges, especially the theory that the government’s own alleged torture of KSM should not result in a dismissal; we may have a precedent on the books that the U.S. government can torture a criminal defendant and prosecute them in Federal court, so long as information obtained from that torture is not used at trial to convict.

The hope that the decisions related to the KSM case can be quarantined or “distinguished” for purposes of future civilian criminal cases makes a mockery of the trial and the concept of precedent under the law. Such a mockery is nearly equal to the fact that the President has said we will convict and execute KSM. Not to be outdone, the Attorney General has said publicly he will detain KSM even if KSM is acquitted or the case is dismissed. Such statements blatantly violate Justice Department guidelines. Nor will such statements go unchallenged by KSM’s legal team who will argue that a jury will never acquit if it won’t impact the defendant’s liberty. This is the very definition of a civilian kangaroo court. Why are we giving KSM rights he otherwise does not have only to trample all over them?

As a witness to, and survivor of, the 9/11 attacks it is my sincere hope that KSM walks into Federal court, pleads guilty and is executed shortly thereafter. However, my hope gives way under the growing evidence that KSM will raise all of the above issues and many more in order to drag the case on for years and provide a platform for America’s sworn enemies to rail against U.S. policy and recruit others to their cause. This is, after all, what enemy combatants do when they are captured in war. KSM and his cohorts know they are not merely criminal defendants. They understand they are at war with us and will seek to use our own Constitution against us by prevailing on their claims or sticking the rest of us with the precedent of their failure to do so.