What Should We Do With Khalid Shaikh Mohammed?

Recently, the Obama Administration’s plan to bring Khalid Shaikh Mohammed, characterized as “the self-proclaimed mastermind behind the 9/11 attacks,” from Guantánamo and try him and several others in a Federal Court in New York City has made headlines. Those on the right have attacked this decision claiming, among other things, that Mohammed should be kept in Guantánamo, that he does not deserve constitutional rights, and that such a trial will expose New York City to further attacks. Obama supporters counter that this will affirm the rule of law, prove our criminal justice system is up to the challenge, and that this move is long overdue. Hillary Clinton was quoted as saying that New Yorkers deserve to have Mohammed face their justice and receive the maximum penalty, and President Obama has “predicted” his execution. At least one person further to the left has applauded this decision as well. Ted McLaughlin writing in the Rag Blog stated: “The Justice Department has finally decided to do the right thing, and bring Khalid Shaikh Mohammed … to justice in a court of law.”

I hope I’m not the only person in America who thinks the parameters of the debate miss the point. In fact, I find the terms of the discussion nauseating.

While it might have been proper to bring Mohammed to New York to stand trial after his capture in 2003, I believe that the government by holding him without charge for six years, water boarding him 183 times and committing who knows how many other human rights violations against his person, forfeited its right to retain jurisdiction over him. “Jurisdiction” is just a legal term for power. In other words I think the fact that one branch of the government (Executive) perpetrated this travesty, a second applauded it (Legislative) and a third (Judiciary) failed to act, means that no branch of our government has the right to hold or judge him.

The government also violated the Geneva Conventions, and the Convention Against Torture. Moreover, the court will have to address the inadmissibility of evidence procured by torture and the impossibility of separating such tainted evidence from proof obtained by other means. The Judge will find a way to clear these hurdles, and perhaps many more, because in the words of Attorney General Holder, “failure is not an option.” And what about finding a dozen “unbiased” jurors? In New York City!!! The imperative of a conviction will predetermine the result. I would love for someone to explain to me how such a sham will affirm the rule of law.

Our government’s actions have created an impossible situation. If this guy really was the mastermind of the 9/11 attacks how can he be released? One possibility would be to hand him over to the International Tribunal at The Hague. At least he would be in the hands of a competent tribunal that was not responsible for violating his human rights. Once again, I know this will never happen, and perhaps it is not a very good idea. In fact, I’ve had several discussions/arguments with my wife and brother about these issues. All the solutions I see either do violence to the core principles of human rights and constitutional law I hold dear, or will fail to provide people with the protection they deserve.

Who among you can see a way out of this conundrum? I’d very much like to hear your ideas on this. Here’s the challenge … craft a solution that does not violate our Constitution, that does not undermine basic human rights, and yet still protects the world from a person who may very well be an unrepentant mass murderer. Please post your thoughts as comments to this blog.

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Comments

I have confidence in our American trial system, even though your parents did not receive a fair trial. Hopefully, times have changed since the 1940's. This man has suffered enough and should be tried and if found guilty, in his case, I believe the death penalty is fair. Not to be nasty but maybe he can get to his version of heaven and have the 70 virgins or whatever.

Unless I'm mistaken, KSM has declared his intention to plead "guilty" and to urge the death penalty. If that is the case, and his intention doesn't change, the legal/constitutional conundrums fall away.

Submitted by Anonymous on Fri, 11/20/2009 - 16:48.

[NOTE: This comment was originally submitted to a different posting, but clearly is in response to this posting, so it's been added here.]

I am not wise or well informed enough to give you the answer to this question but I can share my thought about it.
I have never been able to swallow the conclusion by the 9/11 commision nor run of the mill Medea description of this most tragic event.
In pursuit of answer to this question I am reading a book titled "Ground Truth" by John Farmer. It gives more questions than answers but unintentional (is it intentional?) blunders by the federal authorities weighes heavily on my mind. We need more honest search for truth before we tinker with the fate of Mr. Mohammed.
 

Hello,
I read your article/blog on Khalid Shaikh Mohammed and I would love to post a reply ... the problem is
I have no technical skills and I haven't a clue as to how to do that. I thought there might be a click here
button to post a reply but I couldn't find it. Once I get to the end of it and it asks me to comment ... what
do I do?
For the record .. I agree with you but we have lost all moral high ground in this country and the
Conservative/Religious right are one step short of being a lynch mob and in their hearts they all have Klan robes
in their closets. It is really sad what we have become as a country and as a people.
If the government persists in having this sham of a trial, they should do it in Washington DC where they
have an abundance of security. New York is NOT the place to do this.
The area near the trial will become a fortress, most likely hurting any businesses that rely on the public to survive
and the rest will be unprotected because of our open and free society.
After all this time it is a lose/lose proposition. Meanwhile, all the rest of the people in Guantanamo Bay are still
languishing in a Hell hole of legal limbo.
Thank you,

Frankly, Robbie, you sound idealistic.... I agree with all you say--and
hadn't even thought of it in the light of legitimacy--but the reality is
that the government has him and must and will try him, willy nilly. I see
the more meaningful battle as being against the idiots (pointed out by Jon
Stewart last night, who "fear" for NYC's safety. Carrying out the trial as
fairly as possible at this point is, to me, what counts. Taht way, Obama
gets something done in the name of justice.

I agree with Mr. Meeropol. There's nowhere in the US that Mohammed could get a fair trial. Certainly not in NY. How many Americans, especially New Yorkers, could look on 9-11 dispassionately. And it's impressive how our President biased the case against him.

It's possible there's nowhere on the planet he could get a fair trial, but it would be great if he were tried in a relatively neutral country. On the other hand, it might be hard to find one that still has the death penalty.

Robert,

Your blog was closed to comments, so I hope you will forgive me for using this avenue to reply.

I agree with your assessment almost entirely. My only disagreement would be that this impact of his mistreatment by the federal government up to this point only impacts the authority of said governemnt to hold him responsible insofar as it taints the "evidence" presented against him. That issue will be addressed by the court, if the trial is held properly. I am virtually certain that the "self-proclaimed mastermind" aspect of his characterization will be thrown out first, if what I have read is correct.

Outside of its impact on the evidence, I believe the crimes of state perpetrated against KSM are separate, and should be dealt with separately. If we are unable to properly address them domestically, the Hague would be a proper venue for that. Unfortunately, I do not believe either will happen in our lifetimes. But it is incumbent on us to give voice to the idea, no matter how unpopular.

Thank you.

Robert: something is amiss with your sign-on page. it kept kicking back the form requesting my e-mail address. anyway. good piece about the legal conundrum. your reference to an "unrepentent mass murderer" reminded me that bush and cheney are still free.-Chuck Culhane

Don't forget about Obama and the mass murder he's committing in Afghanistan. If he's repenting, he's not telling us about it. This by the way is not a surprise; he promised us as much during his campaign, which was one of the reasons I didn't vote for him.

In case you haven't noticed, they have just relieved his defense attorneys (military) with whom he was well pleased, as were his recently assigned civilian lawyers. The military lawyers pleaded not to be relieved. All things considered, Robert, your question must be tongue in cheek. There is apparently no intention to give this man even the appearance of protection by the US Constitution. Or perhaps they are trying to give him merely the appearance of the protections to which he is entitled. You are not naive. A railroad is just that.

Being a complete faillure on the computer, I don't know how to respond on your blog, but thank you for articulating what has bothered me. I kept listening for one person to refer to Mohammed as a person with human rights who according to our rules of justice must be assumed innocent until found guilty by a jury. There was not one, not even the president. We have already tar and feathered Mohammed and only the lynching remains. The world court is the only thing I have come up with, but USA hasn't even signed on to that, for fear it would be used against us.

Dear Robert,

I still believe that 9/11 was a pseudo attack on the USA, put together by people who want to have a reason to make war in Afghanistan and wherever else they think they can find oil! Trying this Khalid is only a way to make people believe otherwise. Let's put our efforts on more important issues!

I believe that an International Tribunal would be a fair solution. NY surely isn't a venue where someone who "masterminded 9/11" could be tried...especially if that's how it's reported (and I'm sure it is).

The best answer I can think of would be to bring Mr. Mohammed to trial in NYC, but make sure he has the best defense team possible, one which will fight for a change of venue, do heavy-duty jury research, and demand that any and all "evidence" obtained through "harsh interrogation methods" be suppressed. And then, presumably, vigorously appeal the resulting conviction and sentence all the way to the U.S. Supreme Court.

The whole business should be very very public. I'm sure it will be very divisive, with those howling for vengeance outnumbering those who support the Constitution by a large margin. But perhaps some people will be educated.

And should he eventually be acquitted, well, he'll have to be kept under surveillance indefinitely, for his own protection.

Ted Cloak
tcloak@unm.edu

I agree with Robert Meeropol in many respects. I believe the government has compromised itself in so many ways that it has forfeited the right to have any moral or legal rights over this man. Khalid Shaikh Mohammed should be freed. As long as George Bush, Dick Cheney and other members of his administration are free and walking about, I think it is hypocritical and irrational to worry about what Mohammed may have done or will do in the future. If we have no concern about the scale of war crimes committed by President Bush (and his successor for that matter) it makes no sense to pretend that whatever Mohammed may have done matters at all.

Dave B.
New Jersey

What you have identified is a very old problem. The main issue is whether political trials in the United States adhere to the constitutional standards accorded less notorious endeavors. They have not; they do not; and they will not. You are doubtless aware of the Sacco Vanzetti trials; and you are painfully aware of the trial of your parents; and you may recall the Vietnam War and the Chicago 9 trials. The common rules that define our civil rights will be suspended or a hanging judge will be found and will preside, or both. (What was the name of the judge in the Chicago 9 trials? What a joke he was.) I don't recall the misdoings in the Haymarket trials; I would have to go back to Zinn, and so forth and so forth. So all those considerations that you cite are 100% valid and they do not matter at all. And this charade goes back a long way. I am sorry to disappoint you since you seem to hold some faith in the legal system. But this trial will be part of the system only in the sense of illusion and deceit.

I think you have clearly pointed out the issues that are now inherent in not only what to do about this trial, but also larger issues. I am not an attorney, but I think any competent criminal defense attorney could argue that it would be impossible to find an impartial jury ANYWHERE in the US unless they found at least 14 people who had been in a coma since 2000.

The larger, and even more important question raised is how to even begin to clean up ALL of the messes that the previous 8 years have left, including ruining every aspect of US standing with the rest of the world. It is arguable that, by the standard of how long it takes to clean up the mess, George was the worst president ever. And as someone who had to live through Nixon, I find that an incredible statement.

Anonymous

Robert,

My reaction is that this is a " show trial" and not a real one. It is inevitable that he will be found guilty but his lawyers should make strong arguments against the death penalty. Perhaps, if he agrees, part of their arguments is that KSM and others arose in the Middle East( ME) as a response to US foreign policy there. Although the killing of civilians is not a legal or legitimate tactic of war, our government has been resonsible for the kiilling of thousands of civilians in this area of the world. Our military presence in the MEfor decades and our uncritical support for Israeli policies has angered the Muslim populations there. These policies are governed by our interests in the oil and gas reserves in that area. The other argument is against the death penalty for a person who has already endured continuous torture.

Steve G

If only this trial brings out the heinous travesty of torture, and the information brings accountability on the perpetrators of these illegal invasions and illegal occupations then by all means let the gavel RING.

i'm not qualified to even guess as to guilt or whatever. i do like the idea of trying him at the Hague with all the other alleged terrorists. I'm not for execution but would prefer a 'Tiger Island' location far far away for permanent incarceration if he's found guilty.

William in Billings, MT

I feel that where he would receive a fair trial, would be the international criminal court.

Dear Robert,
Thank you for your clear presentation of the illegitimacy of of Khalid
Shaikh Mohammed's upcoming trial. In my opinion, you cover the key points.
President Obama and Hillary Clinton, our highly-respected leaders, have
regrettably contributed their poison to an already-poisoned well: poisoned
by confession under hideous torture; poisoned by illegal detainment in
violation of habeas corpus; poisoned by rhetorical conviction in the media.
Turning him over to The Hague may be an idealistic, unrealizable goal,
but that does not diminish its appropriateness. What is great about our
country is embedded in our ideals: we lose sight of them to our peril.

Dear Robert: The only issue left is whether the Government and its officials should be condemned by the American people and the rest of the world for torturing him and delaying his trial.

After holding and torturing Khalid Sheikh Mohammed for 6 years, President Obama and Attorney General Holder now assure us that he will be tried -- and we'll be pleased with the outcome.

Obama declared that Americans, offended that Mohammed would have legal rights in a civilian trial, won't find it offensive "when he's convicted and when the death penalty is applied to him."

Is this Alice-in-Wonderland attitude Obama's vision of "due process" under rule of law?

I agree with Robert that the Hague would be a logical venue for an honest trial. And other accused terrorists (such as Bush, Cheney, their team, Clinton, Obama and Netanyahu) should also be tried there.

Rod Driver

Dear Robert, I dont know what else you can do besides what you have since as you well know the whole thing is a charade, including the Sheik's fantasies about the afterlife.
We can all write to the media and our representatives and say that we believe it is all "Bull"
from Bush"s reaction on day- one to the 8 year program to destroy the constitution.
As to the Sheik, life- torture would be a quiet, comfortable imprisonment, if indeed he did what he claims to have done.

Dear Robert,
I agree with your analysis, and feel the most proper place for the trial would be in the Interrnational Court, in view of this country's violation of criminal justice of the Geneva war Agreements, i.e. torture in particular. However, there is a greater concern regarding the impending violations of our constitutional rights in the name of "fighting terrorism and safety". Recently the killings at Ft. Hood by Dr. Hassan has been discussed in Congress by a Committee headed by Senator Lieberman. During part of that discussion that I saw on C-SPAN, the direction of discussion went to how to avoid such tragic incidents in the future. It was proposed that military personnel inform their superiors when they even hear talk by their fellow soldiers regarding any criticism and contrary opinions that go against the conduct of this country in the battlefield or in politics. This information will be used to cast a doubt on the soldiers trustworthiness to be in the military. It was shocking to hear this suggestion coming from our own Senators. I fear that the same reasoning can be applied to civilians not in the military. Since terrorism can be done by civilians, their reasoning to fight terrorism and provide for the safety of the population may mean that our free speech and right to demonstrate against national policies of war in Iraq and Afghanistan- as examples, might be construed as acting in a manner to encourage and forment "terror". Hence there is a threat that we will be encouraged to tell on our neighbors, and enter into a new McCarthyism period for our nation.

Whether or not KSM was involved in 911 is basically academic. I certainly agree with RM that his treatment was contrary to every princial of decency known to humanity and a "fair" trial is impossible. That said, 911 was a false flag operation, an "inside job". The evidence for this is overwhelming. For starters readers can go to Archietects and Engineers for 911 Truth and just follow the links.
The government HAS to keep up the threat of a "terrorist menace" just as they had to murder the Rosenbergs to maintain the threat of a "Communist menace". The US economy depends on miitary spending and the US empire could not exist without an army to defend it. The only solution to this problem to get rid of US imperialism.

Reposted from an email rcvd from someone in Australia:

I’m not an American so some of the particular subtleties of Khalid Shaikh Mohammed’s case probably escape me. But, in general, I must say that having Khalid Shaikh Mohammed tried by the government of the United Sates would be like having Charles Manson tried by the Hell’s Angels.

The United Sates has forfeited all legal and ethical standing in this matter (and many others besides).

Also, I was in Venezuela and Cuba at this time last year and people there kept discussing if the election of Obama would change US policy. They really were hoping that the jackboot would get lifted off their necks.

It must be said by now that, while Obama’s election raised many hopes and lifted the morale of people, there hasn’t been significant change; certainly change to the extent that he gave people reason to believe would come.

Now, more than ever, the American people have to prove that you actually care about such things as human rights, democracy and decency and force your government to stop its crimes. Dare I say it: stop being so in awe of your rulers; kick their asses.
 

[reposted from an email response]

I did immediately read your blog. You make wonderful points. I must say I've been of many minds about Khalid Mohammed.....some not within my political correctness or beliefs. But I also abhor the water boarding, torture, and being held for 6 years...and all that that entails. How could he get a fair trial here..or anywhere in the US. There is a part of me that relishes the guilty verdict for him...I know, I know...again, not correct.

I think your idea of having him tried at the Hague is brilliant. Just and right. Why hasn't anyone come up with that before?!

Any way to promote this idea?

[reposted from an email reply]

My husband used to say "if he were a judge, he would ask the person at the bar ---a n exploiter, a KKK type, a racist who murdered people, and that sort of prisoner---Are you guilty or guilty with an explaination. I do not know is these prisoners are guilty of anything after having been tortured and made to confess. I do not believe that any one of them, will get a fair trial. the press and tv have conspired to put the fear of delawd into us. I cannot see how a l3 year old boy, being a prisoner for six years, should even be on trial. We have read about neighbors turning in neighbors for a bounty. Are they guilty or are the nieghbors trying to make a buck? The hysteria surrounding this issue will not permit them to be found innocent and thus the trials are a farce. Having a trial, adheres to the Constiution, having them guilty, adheres to our base nature and satifies. our lust. I would jlust send them home or to any nation that would take them. but--that cannot happen.

 

[from a comment received by email]

Thank you again for being you. The Tribunal would be the only possible way. This country is so far gone that at 80 I see no hope but it does give me some comfort when I read what you have just written. Keep up the good work it is too late for me to help except to support what you do with a small contribution every year.

[reposted from an email reply]

Dear Robert:

 

As usual you're right on target.

 

We don't really know if this guy is guilty.The endless torture has contaminated all justice.

 

[another reply by email]

 

Dear Robert,

 

I still believe that 9/11 was a pseudo attack on the USA, put together by people who want to have a reason to make war in Afghanistan and wherever else they think they can find oil! Trying this Khalid is only a way to make people believe otherwise. Let's put our efforts on more important issues!

 

I agree with you, Robbie. But I see a diffeerent current situation. The problem today was caused by the failure of the Bush presidency to follow "the rule of law" NOW, we should do what they didn't.
There are consequences, good and bad. But the USA should act as we are supposed to act.

Over 30 comments, more than a dozen pages of replies! Amazing. There is no way I can do them all justice.

I plan to make a more general response, however, by posting a new blog tomorrow about this discussion. I hope you will check it out.

Hi Robbie,
I haven't seen you in quite sometime (since I co-facilated one of the RFC retreats in the late '90's) but I always keep up with your great work!
Alas - you already know the answer - there is no possible 'justice' in this situation. Too many lives have been lost and too many years have passed to even begin to see justice dealt.
I don't mean to be an Obama apologist, but this sack of trash got thrown on his front lawn the day he was elected. He doesn't have a right way to go (even if he were to try and suss out a just conclusion). He would be torn asunder if he even mentioned the Hague! Even that solution is problemmatic but it is the lesser of evils.
If he says anything like 'we need to ensure that this man's human rights aren't violated, so therefore we need to send him...' He would be impeached in a matter of moments. (Remember to most in this country he is Black first which is NEVER beyond suspicion)
So this is the definition of a lose - lose situation. This man will never get justice and this country will never be free of the specter of 'terrorism coming home to roost.'
ayoka turner

Someone asked who was the judge in the Chicago 8 case. Without Googling it to be sure, I seem to remember it was the same Judge Kaufman who presided over the Rosenberg case.

I have three comments to offer.

1. It doesn't make sense to me to apply the standards of criminal law in the context of war. There do need to be standards, but the trial of someone who is part of an army waging war against the United States would seem to require a different set of standards.

2. I oppose capital punishment in this case as in all cases. Capital punishment is an act of violent self-righteousness, and violent self-righteousness is a passion of which our culture is too accepting. If we can wean ourselves off self-righteous violence, we can reduce the nation's murder rate. A strong bias for redemption ought to have a much higher place in our culture, and in global culture generally. To kill Khalid Shaikh Mohammed is to ratify the distorted culture that produced the 9/11 attack in the first place.

3. I disagree with those who want to read into 9/11 a conspiracy hatched in America. Everything I have read on this issue from 9/11 "truth" advocates has the same characteristic - they wholly distort rules of evidence to fit their own emotional needs. I recognize anger at how America behaves in the world; but using that anger to flip the available evidence on its head is beyond the bounds of responsible citizenship. That we may not know all we would like about 9/11 does not warrant the impassioned assertion that Al Qaeda's hijackers somehow weren't the "real" villains of 9/11.

You, Robert Meerpool, as well as most of us progressives have cause to be concerned, but 9/11 did happen and the perpetrators need to be brought to Justice. A trial at th Hague would be the best solution, but, as you say, that won't happen. Those of us who have experienced MaCartheyism realize that things have changed in the last 60 years. We now have to put our trust in American Justice and hope for the best.

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