The Worst Kind of Trial

“Men, we’ve got to give this man a fair trial before we hang him.” — attributed to Judge Roy Bean.

Finding an impartial jury for Khalid Sheikh Mohammed (KSM) is the least of our worries in President Obama’s decision to try him in a civil court. Our greatest concern is that it will be a shambles of a show trail that ignores all established legal precedent. The ramifications of that could be worse than terrorism itself.

What Obama the law professor fails to grasp is that none of the prerequisites exist for a fair civil trial in the case of terrorist captured overseas by intelligence agents.

For example, just for starters, what objective proof do we have that the individual who will show up in the courtroom is actually the Khalid Sheikh Mohammed who planned 9/11? What do we do if he simply asserts he is not the person the government claims he is?

We seldom concern ourselves with the true identity of civil criminals because all of us in America and the rest of the developed world live in a web of interlocking forms of identification. When a civil criminal is captured overseas, we rely on the civil authorities of the country of capture to ascertain identity. Even in the case of criminals who use false identity, it’s trivial to find witnesses to physically identify the defendant as the individual using a particular identity. How can we hope to have that level of certitude in the case of someone captured overseas in a society with no formal system of identification?

Then we have the entire problem of terrorists operating under the cover of false identities like spies. It’s not uncommon for high-level members of covert organizations to have doubles who leave false trails to confuse their pursuers. What if we caught one of those guys? What if the entire identity of Khalid Sheikh Mohammed is entirely fabricated and doesn’t actually attach to a specific individual? That would make useless all the witnesses and electronic information saying that an individual with that name did this or that.

That is just the start of the myriad testimonial and evidentiary problems with a civil trial.

KSM was water boarded. In a normal civil trial, that would make his confession entirely inadmissible. Even if the jury knows of the confession external to the trial, an honest jury member would have to disregard such information. If the confession is allowed against all precedent, the jury could honestly disregard it just as they would in any proven instance of police brutality.

The critical witnesses against KSH will all be people who serve covertly in either intelligence agencies or the special forces. Spies don’t play fair even with the people they protect. To deceive a nation’s enemies, they have to deceive a nation’s people. Can a jury actually trust witnesses who spend their lives serving in a shadowy world of deception? The Church commission report even claimed that US intelligence officers lied under oath before Congress under orders of the President in order to protect ongoing operations. Couldn’t they do so again? Couldn’t a jury reasonably conclude that intelligence officers would not tell the whole truth in a trial in order to protect agents and methods? Couldn’t a jury reasonably conclude that intelligence officers might frame an individual in order to pursue some other more significant target or to prevent another 9/11?

What about chain of evidence? Khalid Sheikh Mohammed wasn’t captured by civil law enforcement but by the military. These people where fighting a war, not gathering evidence for a civil trial. Did they carefully log every physical piece of evidence and log every time some touched it? How will the prosecution refute a claim that evidence was tampered with?

In a civil trial, the defendant has the right to examine any and all evidence used in the trial. That includes examining the tools used to find evidence such as computer forensic software. Are we going to let Khalid Sheikh Mohammed and his defense team examine the internals of the software and hardware we use to track enemy communications? Are we going to expose all the techniques of the NSA for the whole world to see?

A civil defendant has the right to face all accusers. Are we going to force intelligence officers and special forces members to reveal their identities in open court? If we don’t, how do we prove that the government witnesses are real people and that they are telling the truth about real events?

These and other factors could all combine to create a plausible defense that simply says that all the evidence presented was fabricated by the government. Such fabrication does occur in much less prominent civil cases, so a jury cannot disregard the possibility it could occur in such a high profile case. How could the government objectively refute such a claim when it employed none of the safeguards used by civil law enforcement?

I personally would have real doubts of convicting KSM if I sat on his jury. I believe he is guilty and I’m not one of those people who automatically assumes that everyone in the military or intelligence is unethical. Indeed, I think he is guilty expressly because I trust the people who serve. However, in a civil trail, the burden of proof rests on the state and part of that burden is the ability of the state to objectively demonstrate that all its assertions are true. If they can’t do that, then a juror is morally and legally obligated to find the defendant not guilty.

We wouldn’t expect a jury in an ordinary trial to convict just on the basis of a cop on the stand saying, “He did it. I have secret evidence and witnesses that prove it. Just trust me on that.” We would expect a jury to find the defendant not guilty even if they had information independent of the trial of the defendant’s guilt. Why should we assume a lower standard in this case?

KSM will no doubt be convicted but it won’t be in a fair trial by any standard definitions of the term. He will be convicted purely on the government’s say so. The trial will offer dozens or hundreds of grounds for appeal. KSM will be alive owing to appeals 20 years down the road regardless of what sentence the court hands down.

However, the real danger of this trial isn’t that KSM will go free. The real danger is that Obama’s obsession with treating terrorism as a civil crime will lead to the destruction of our entire civil criminal justice system. I will cover that grim possibility in my next post.