The Blackwater Guards, KSM, and the American Judicial System

The judge's ruling dismissing all charges due to prosecutorial misconduct has an importance which transcends the facts of the Blackwater case. The judge appears to have followed well-established law, and the U.S. government did not do so during the two years preceding the trial. Although the law is well-established, one must wonder whether the Holder Justice Department is as intimately familiar with it as it should be.

Is it likely that the trial of Khalid Sheikh Mohammed in New York City or even the trial of the young Nigerian gentleman who tried to blow up an aircraft landing in Detroit will go much differently? I think the parallels are all too obvious in the case of KSM, but less so in the case of the "underwear bomber."

The KSM defense, probably correctly, will contend that any statements he made were compelled by what the Obama administration now considers torture, and that all information used in prosecuting him must, of necessity, be directly or indirectly the "fruit of the poison tree" and must therefore be ruled inadmissible. If the case gets that far, it will be necessary for the judge to hold a preliminary hearing, similar to the three-week long preliminary hearing held in the Blackwater case, to determine whether there was in fact compulsion. If so, the judge will consider whether and to what extent other evidence used at the grand jury proceeding which indicted him is its fruit. The burden of showing that evidence other than KSM's statements was not the fruit of those statements will be upon the government, and it will be a heavy burden indeed.

KSM's capture and subsequent interrogation clearly were not undertaken with a view towards criminal prosecution in a civilian court in the United States; to the extent that he had rights under the U.S. Constitution (and I am perhaps in the minority in thinking that he did not) during his interrogation, they were almost certainly violated. That was not a bad thing. Something far more important was involved: obtaining information to prevent occurrences similar to the 9/11 terrorist attack on New York City and Washington, D.C. This, I think, furthers my argument in an earlier article that KSM should not be brought to the United States for trial, and that he should not be tried by a military commission either. He should be detained indefinitely at Gitmo.

On January 4, the Fourth Circuit Court of Appeals upheld the conviction and sentence to multiple lifetimes in jail without any possibility of parole of Zacarias Moussaoui Moussaoui, who apparently intended to commandeer a fifth aircraft and crash it into the Capitol building. Mr. Moussaoui then set out to turn his trial into a farcical circus promoting jihad, and he succeeded brilliantly. It seems very likely that KSM will try to improve on his efforts, and with the illumination provided in the Blackwater court's decision as to compelled statements and their fruits, he should have an easy job of it.

The young Nigerian underpants bomber may present a different case. His attempted terrorist act occurred on a U.S.-flagged passenger aircraft in U.S. airspace. There is thus far very little public information about what happened to him following his removal from the aircraft, other than that he was asked a few questions. When advised that he could do so, he requested counsel and followed advice to shut his mouth. If he said anything interesting before shutting his mouth, it seems possible that it cannot be used against him since he was then under arrest, even though not immediately given a "Miranda warning." As soon as he was disabled by a fellow passenger in the act of igniting his device, it was clear that he was more than a "person of interest" or a mere potential criminal suspect. In the absence of such information, it is useless now to guess whether other evidence to be used against him will or will not be found to be the "fruit of the poison tree."

It strikes me that, although it is important that he be tried for his crimes, it was and is far more important to milk him for whatever information he might provide on why, how, and with the help of whom he set about to blow up the aircraft. Should that mean he might eventually "walk" -- guilty as Hell and free as a bird -- so be it. The futures of far more and better people than the young Nigerian gentleman are in question, and just about anything done to protect them is far more important than his criminal prosecution. Perhaps an alternative to a criminal trial would be a sanity hearing, followed by his indefinite confinement in a mental institution.

The United States Constitution, the courts sworn to uphold it, and the resulting criminal judicial system are great -- arguably the best in the world. However, there are simply some cases which have no business in the system. I consider terrorist attacks to be in that category. There may be some disagreement with the notion that 'tis better that a hundred guilty man be set free than that one innocent man be convicted. Indeed, we sometimes go too far. However, in the case of KSM, and perhaps the underpants bomber, the needs for criminal prosecution and conviction are trumped by the far more important need to save the lives of hundreds of others potentially to be lost through the future acts of those with whom they committed their crimes. I would far rather see KSM untried and detained indefinitely at Gitmo, and the underpants bomber untried and indefinitely detained in a mental institution, than to forego the benefits of their interrogations.