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  • The Entire Jury Will Have to Be in Witness Protection

    Posted by Shannon Love on November 19th, 2009 (All posts by )

    On the subject of the civil trial of KSM, Trochilus raises a point I hadn’t considered:

    Given the nature and depth of Islamo-facist enmity toward all Western institutions, including all faiths other than their own, toward all our democratic institutions, including our judicial system, and finally toward most Americans; and given their willingness to act on that hatred — who in their right mind would willingly consent to serve on such a jury?

    This will be a trial watched by the entire planet. Millions of Islamist fanatics will be watching. There is a good chance that several thousands of those fanatics might decide to exact revenge on anyone involved.

    Anyone who sits on that jury will have to spend the rest of their lives looking over their shoulder worrying that they will be the target of a revenge killing. They will become participants in a war with no boundaries and no end.

    Soldiers at least can eventually leave the battlefield behind, but for these jurors the war will follow them wherever they go. Soldiers at least know their loved ones are safe at home, but these jurors will have to worry their loved ones are also targets. Soldiers die in foxholes beside their comrades. These jurors will die in their minivans with their children.

    Can we really ask any of our fellow citizens chosen by lot from the voter rolls to assume a burden greater than that we ask of our soldiers?

    No doubt we will endeavor to keep the identities of the jurors secret, but this will be just one more precedent-breaking, non-standard element that will make the proceedings look like a show trial. We will also most likely have to use an unprecedented method of jury selection. We certainly won’t want to let the defense have the same level of access to the details of the jurors’ lives that we do in regular, non-political trials.

    This is yet another reason why military tribunals are a better idea. Better that military officers who have pledged their lives to the defense of the Constitution should shoulder the burden of the risk involved than some 24-year-old single mother who couldn’t get out of jury duty.

    I have to wonder: When he decided on a civil trial, did the President think about the ordinary people that would be swept up in these events and have their lives forever altered? What twelve citizens of Manhattan is President Obama going to condemn to living on the front lines of the long war?

     

    26 Responses to “The Entire Jury Will Have to Be in Witness Protection”

    1. Subotai Bahadur Says:

      To answer the question in your last paragraph, absolutely not. There is no evidence at all that Buraq Hussein Obama considers the fates of individual ordinary Americans at all. His concentration is on people as masses to be manipulated in pursuit of his personal goals above all.

      So, let us consider what those goals might be. The first thing to realize is that this is not a spur of the moment decision where there has been no time to consider the ramifications of the decision. If New York Governor Patterson is to be believed [Democrat + politician, I know] he was told in May that this was going to happen.

      Attorney General Holder found himself caught flat-footed and twitterpated by questions from Senator Lindsay Graham about the legal reasoning behind it, claiming that the law being questioned had not ever been considered. It is on video all over YouTube. For a Democrat appointee to be pwn-ed by Lindsay Graham, who is in the running to be the closest thing to a member of the DNC in the Republican party; he has to be monumentally unprepared or lying on a grand scale. Note the timeline, and further note that Holder has said elsewhere that he did not ever discuss this subject with Buraq. I’m going with lying. The alternative is incompetence, but surely some staff member tried to help Holder CYA.

      There is not room for a full legal brief here, so suffice it to note that in the case United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Supreme Court was forced to define the scope and reach of Constitutional rights. The case deserves detailed explanation, but suffice it for here to say that based on long and well-cited precedent in the Supreme Court; even in areas under US sovereignty not everyone is covered by the US Constitution. One has to be a member of the “national community”. Foreign nationals captured in the act of being illegal combatants under the Hague and Geneva Conventions [which are assimilated into US law], in a time when we are at war [the Supreme Court considers the War Powers Resolution to be functionally equivalent to a declaration of war], are NOT members of the US national community. They survive, literally, only at the pleasure of the capturing power under the Conventions.

      So we look at the mechanics of the trial. Up until now, Khalid Sheikh Mohammed has been defended pro bono by the ACLU. There has been no indication that this will change. We know where their sympathies are, as exemplified by the “Blind Sheikh’s” lawyer who who helped him plan further terrorist attacks while he was in the Super-Max in Florence, CO. [She just lost her appeals, I understand; and is actually going to prison herself.]

      We know that the civilian rules of evidence and discovery will hold, or the whole thing has no point. Under those rules, classified materials can only be excluded if the government, represented by the prosecutor, so moves and vociferously insists. Who is the prosecutor?

      His name is Preet Bharara, and he was recently confirmed as US Attorney for Southern New York. Given the long timeline involved, it is not unreasonable to conclude that the public announcement of the long-planned trial was held pending his confirmation and settling in.

      In these days, it is probably necessary to explain his background, given his non-European name. He was born in India; and has a mixed family of Sikh, Hindu, Muslim, and Jewish. I specifically argue against this being some sort of a Muslim conspiracy, given that in Muslim terms he is somewhat of an apostate.

      No religious conspiracy is needed, because there is enough of a political background to cover it. Bharara, prior to being appointed to being US Attorney was a senior member of the staff of Senator Charles Schumer [D-NY]. Senator Schumer was the point man in the attempt to force “War Crimes” trials on the US intelligence community and military; which trials Buraq Obama supported until it became politically inexpedient to do so.

      We have a president, who has a long held goal of trying the American intelligence community for the “war crimes” of successfully defending the country against terrorist attacks. That president places captured terrorists in the ideal legal situation to conduct that public trial as a media circus; in a venue that the Constitution, the law, and the Supreme Court says that they do not belong in. He appoints a new Federal prosecutor whose background is to push for war crimes tribunals against the United States. Occam’s Razor anyone?

      Obama gets his wish, because the intelligence community gets tried in a venue where they are the real defendents and cannot fight back. The almost certain eventual acquital of KSM and his co-defendents is a bonus. The risk to the lives of the citizens trying to do their civic duty is considered an inconsequential byproduct. By the way, if threats are made, what odds do you give that there will be any real Federal protection offered to the jurors, and if offered how effective will it be allowed to be?

      Subotai Bahadur

    2. anonymous Says:

      I’m not even sure you can keep the names of jurors secret after a trial is over.

      In fact, I recall reading an article (I wish I could provide a more exact reference) about a woman who went to extreme lengths to try to exonerate her son (or perhaps husband?) after his conviction, including tracking down individual jurors and stalking them at, say, a bar where one of them hung out and starting up an incognito relationship with that person, going so far as to rent an apartment for that purpose, all in the wild hope of gleaning just one bit of inside information about the trial that could force a retrial. It was mentioned in passing in the article that she was able to get jurors’ names after the end of the trial because by law it was public information available upon request.

      I don’t recall the jurisdiction; perhaps it was New York or New Jersey. Perhaps the above vague description will ring a bell with some other reader?

    3. Majormarginal Says:

      When former governor George Ryan was convicted in Federal Court on corruption charges the defense and local press smeared several members of the convicting jury.

    4. Subotai Bahadur Says:

      UPDATE to my post above. It is even worse than I thought. Apparently the Justice Department has hired a number of the defense attorneys for the Guantanamo detainees as staff for this trial. Under questioning by the Republicans on the Senate Judiciary Committee; Holder only said that he would “consider” responding to a formal request for their names and information on who they represented. He blew them off. The defense is literally running both sides of this trial.

      http://tinyurl.com/ykwv2qs

      Subotai Bahadur

    5. Shannon Love Says:

      Subotai Bahadur,

      It does certainly seem like the foxes are in charge of the hen house.

    6. Mrs. Davis Says:

      Several other questions come to mind. President Obama has said KSM was tortured. Will the defense call him as a witness to testify to that effect, thus tainting the government’s evidence from interrogations or will nothing KSM has said be entered into evidence? And would The One, like Jefferson, ignore a subpoena from the judiciary? How about the subpoenas to Bush, Cheney and Rumsfeld? Will the DoJ compel their testimony?

      Where will they release KSM when he is acquitted?

    7. Tom Holsinger Says:

      Their families will be targets too.

      I expect that New York papers and media will instruct potential jurors on a sure-fire way to avoid service on this particular jury – just avow that they are completely prejudiced against Khalid Sheikh Mohammed and want him to be killed as fast as possible.

    8. PCP Says:

      “When he decided on a civil trial, did the President think about the ordinary people that would be swept up in these events and have their lives forever altered?”

      Absolutely. The plan is this: the Guantanamo detainees are released, the facility closed down to great fanfare, and immediately reopened as the ultimate witness protection camp. The judge, jury, prosecutors, pizza delivery guys, and their extended families will live out the balance of their natural lives there.

    9. James R. Rummel Says:

      I’d volunteer. But I don’t live in New York, so it is easy for me to say that.

    10. Boonton Says:

      Well a few facts might get in the way of your hysteria:

      1. Terrorists have already been tried and convicted in the US. There was the first WTC attack as well as a plot to attack multiple tunnels and bridges in NYC that was sophisticated but was stopped before it got off the ground. Both resulted in jury trials and convictions. No Islamist counter attacks were ever mounted against the jurers nor is there any evidence that the jury didn’t want to do its duty out of fear of such.

      2. Jury intimidation. Ohhh yea the judicial system has never heard of that and has no tools to address it! Wow 9/11 really did change everything! Not quite. Jury tampering has been something the judicial system has had hundreds of years to address. Esp. with organized crime, tools do exist to keep jury members secret. I’d worry more about a mafia defense lawyer getting and leaking jury names than a pre-vetted defense lawyer in a terrorism trial.

      ” What twelve citizens of Manhattan is President Obama going to condemn to living on the front lines of the long war?”

      Well it would seem we are all on the front line of this long war, wouldn’t it? I wonder if among the victims of 9/11 there maybe happened to have been someone who had gotten out of jury duty and went to work that day? I’m amazed at how cowardly the right has become. You mean after trillions of dollars on foreign wars and homeland security as well as thousands of additional lives lost we haven’t even gained the ability to conduct trials on US soils for people that have committed crimes against us? Something we had before 9/11 and before that massive expenditure of resources?

    11. Trent Telenko Says:

      Boonton,

      The issue isn’t “Jury intimidation.”

      It is juror _elimination_ via Islamist international conspiracy or domestic sudden jihadi syndrome for decades after the trial.

      It is absolutely certain in this era of digital information that some time during this year long trial, that all the identity information on the jurors will get on the internet.

      Once there, it will live forever and future generations of commercial search engines will always be able to follow today’s digital trails to your current address.

      After that, jurors and their families will never, ever, be safe.

      That is the nature of the war we are in.

      Those who make formal ideological screening of Muslims for Islamist beliefs impossible make religious and racial screening by individuals a) Inevitable b) A survival issue.

      That has huge implications because it means “Better to be judged by nine than carried by six” is coming, again, to America with Fundimamentalist Muslims starring in the role of black criminal.

      There is currently a good media market for a “Bernard Goetz meets Sudden Jihadi Syndrome” legal/political/media thriller out there.

      _If_ you can get past the publishing house first readers.

      After you get a KSM juror or two is attacked/knocked off by Islamists of any stripe, real life will make it too late for thrillers.

    12. Boonton Says:

      It is absolutely certain in this era of digital information that some time during this year long trial, that all the identity information on the jurors will get on the internet.

      No its not absolutely certain. If you think it is then where is the call to eliminate jury trials in organized crime cases? After all, the mafia has, unlike Al Qaeda, actually shown an interest in getting to juries in order to secure an acquittal.

      Look, the fact is both jury tampering and jury intimidation AND jury retaliation are not new concepts. It’s been around as an issue for a very long time and the tools are there to address it, which if you and Mr. Love bothered to educate yourself slightly about the real life US legal system instead of pretending you can figure it all out in your head, you’d know.

      Otherwise simply advocate eliminating the entire jury system. Do you seriously believe Islamic terrorists are the *only* ones who would be interested in retaliating against jurors who convicted someone of a serious crime (esp. since there are some hints that KSM wants a conviction and maybe martyrdom via the electric chair)? If this magical ‘digital age’ has made anonymous jurors impossible then certainly the thousands of civil and criminal cases heard by jurors every year will soon result in a rush of attacks on innocent jurors by enraged family members, friends, lovers, and fans who discovered that http://www.google.com has lots of digital info (and also victims too who might be angry at a jury who acquits the accused!).

      Keep in mind, however, that this isn’t as new under the sun as you want to imagine. A hundred years ago you couldn’t google someone’s address but you probably could easily find out who was on the jury of a notable trial if you didn’t already know them from around town.

    13. Tom Holsinger Says:

      Boonton, organized crime does not go after jurors following a trial. This may change as Mexican drug gangs operate more extensively in the United States, but there has not been any significant problem concerning organized crime harassing jurors post-trial. I am not aware of any such happening at all in the past 50 years, and I am a judicial branch attorney.

      Witnesses are a different matter.

      The modus operandi for Islamic terrorists, though, absolutely does involve attacks on family members well after events. This is a reasonable concern for KSM jurors.

    14. Shannon Love Says:

      Booton,

      Your argument would be more creditable if it wasn’t a rehash of the pre-9/11, “No terrorist is going to carry out a mass-casualty attack on American soil because it would be organizational suicide” argument.
      ari
      The biggest problem with people like you is that you think in terms of Aristotlian natures instead of in terms of scale. For you all terrorist attacks share the common nature of being terrorist attacks. So anything that happened before, during or after any one terrorist attack will happen in the all. Further, you believe that since terrorist attacks share nature with criminal acts, we judicially treat all terrorist attacks just like we judicially treat all criminal acts.

      Your thinking is all perfectly logical assuming based on your natures based thinking. However, in reality, scale is more important than nature. There is a vast difference between an act that kills one person and an act that kills thousands.

      Let’s see how apply the concept of scale destroys your arguments.

      1. Terrorists have already been tried and convicted in the US.

      For small scale attacks most of which are largely unknown outside the US. 9/11 was the most observed and reported event since the moon landing. Especially in the Islamic world, it is the defining event of our era. Likewise, the trial will be massively observed and will be viewed in the Islamic world as a defining event. This scale of interest will generate security concerns not seen in other trials.

      We also have the issue that previous trials were real trials and not show trials. There was a possibility in previous trials that the defendants might have been found innocent and released. This in turn might have forestalled attacks by terrorist allies who did not want to prejudice the jury. There is no possibility in this trial that the defendants will ever go free. Both Obama and Holder have clearly stated that the fix is in. There is no reason for terrorist allies to withhold attacks out of fear they will change the outcome of the trial.

      2. Jury intimidation. Ohhh yea the judicial system has never heard of that and has no tools to address it!

      Yes, well, we’ve had criminals upset at journalist and writers before but prior to the rise of the Islamist, targets of such anger did not have to spend the rest of their lives surrounded by police protection like Salman Rushdiei or those who published the Danish cartoons. We haven’t had all types of publishers in the free-world afraid to republish the mere cartoons for fear some one person out millions would murder them. Again, different scale.

      Organized crime families are in fact rather small organizations. They are usually composed of just a few dozen core members and a maybe a hundred or so hangers on. Only a small number of those members are willing to stick their own necks out to get revenge on a jury member and the tradeoff in intimidation is easily outweighed by the powerful negative reaction it generates. Even so, witnesses against them have often to be hidden for life.

      By contrast, any Islamist anywhere in an organization or not, has motive to strike at anyone involved in the trial. There are millions of Islamist world wide and tens of thousands within the US alone. All of them fantasize about dying while striking a blow the enemies of their religion. Further, they may have the support of the intelligence services of nation states like Iran or even China.

      Well it would seem we are all on the front line of this long war, wouldn’t it? I wonder if among the victims of 9/11 there maybe happened to have been someone who had gotten out of jury duty and went to work that day? I’m amazed at how cowardly the right has become.

      I think these paragraph speak for themselves and require no refutation.

      You mean after trillions of dollars on foreign wars and homeland security as well as thousands of additional lives lost we haven’t even gained the ability to conduct trials on US soils for people that have committed crimes against us?

      Ah, yes the old, “Your actions didn’t result in a perfect world so they were useless,” argument. Unfortunately for you, that argument rarely convinces adults.

      Something we had before 9/11 and before that massive expenditure of resources?

      Something we had in a different era with different enemies. This is like arguing post-WWII that we didn’t need any air defense systems because we had never been attacked by aircraft in the previous 150 years.

      You simply don’t want to believe that times and conditions change. You want to believe that the problems we faced in the past have exactly the same nature as the problems we face now. You want to believe that the methods we used in the past will always, always work in the future and that we never, ever have to change anything.

      Grow up.

      This is exactly the kind of thinking that led to 9/11. Prior to the 90s terrorism was all about generating media events. They were nothing but bloody publicity stunts. After the Soviet Union fell and most terrorist stopped being controlled by them, the ideology, goals and tactics of the terrorist in the Islamic world changed. They stopped trying to generate media events and instead started trying to generate high body counts. Many tired to warn authorities and the public that the rules of the game had changed but people like you would not listen. Even after the attempt to ram a plane into the Eiffel tower and the African Embassy bombings you would not listen.

      The 9/11 hijackers were able to seize control of the aircraft with box cutters because both the training of the flight crews and the law of the time required air crews to surrender control of the aircraft to anyone attempting to hijack the plane. This made sense in the early era of terrorism because back then we could safely assume that the terrorist wanted to land the plane and generate a media event. The safest course for the passengers was to let the terrorist have their dog and pony show.

      People like you ignored warnings that the rules had changed. People like you thought, “This is how we’ve always deal with hijackings in the past so this is how we will deal with them now. Changing the rules to let air crew and passengers resist will lead to unnecessary deaths.”

      Now here you are saying the same things about the trial. “Everything about this trial is just like all the other trials we’ve had in the past. Everything about global Islamic terrorism is just like dealing with the old Italian mob. A trial the 9/11 perpetrators will be just like the trial of the ’93 World Trade Center bombers.”

      All I can say is that I hope like hell you are right.

    15. Boonton Says:

      For small scale attacks most of which are largely unknown outside the US. 9/11 was the most observed and reported event since the moon landing.

      So what? For all you pretentious prattle your arguments are totally lacking in any logic.

      Scale of the attack doesn’t matter, what matters is the scale of the resources of the person or group that would be motivated to retaliate against a jury. And for the record, the first WTC attack was not minor. If it had toppled the tower(s) immediately it would have easily been ten times as worse as 9/11. Likewise the 2nd major terrorism trial would have been a major attack taking down tunnels, bridges and other high value targets in NYC. It’s clear the scale of an attack is as much a factor of luck as it is the group performing the attack. The 2nd worst attack in US history was the OK city bombing which appears to have been carried out by two or three people and could, in theory, be done by a single person.

      Organized crime families are in fact rather small organizations. They are usually composed of just a few dozen core members and a maybe a hundred or so hangers on. Only a small number of those members are willing to stick their own necks out to get revenge on a jury member and the tradeoff in intimidation is easily outweighed by the powerful negative reaction it generates.

      Amazing isn’t it how you construct a beautiful theory for why organized crime wouldn’t bother with jury intimidation and corruption…yet they have. How can this be? Perhaps you overlook some facts, which is a danger of relying too much on theory.

      For one thing, the payoff is potentially greater. A mob boss found not guilty either because the jury was intimidated directly or a high profile attack on a previous jury that happened cannot be tried again for the same crime.

      Likewise you botch your analysis of resources. Technically Al Qaeda might have more resources than, say, a local mob family. But in terms of quality the mob family has the advantage. They know the local area, have members that grew up in the neighborhood. They are much more likely to even have sources inside the courts, law enforcement and the press. While the foreign terrorist group may be able to get people into the area posing as tourists or students or workers, they lack the depth of local coverage. The Sopranos might be at a loss if the trial happens in Los Angeles or Dallas but if it happens in NJ or NYC their abilities are almost certainly more impressive. It is in that reality that the tools for protecting juries while preserving the legal system have been developed and refined.

      As for your rant that ‘people like me’ are at fault for 9/11 because we just don’t have your ability to imagine dangers, grow up. I’m well aware that the tools and methods of our legal system must change to meet terrorism just as it changed to meet the cold war, the civil war, and so on. It is easier and almost always more sensible to refine a system rather than trash it and try to rebuild it by the imaginations of people like you. WWII saw the introduction of airpower and the decline of battleships but we didn’t meet that change by, say, tossing out age old ideas like the chain of command on the grounds that its a whole new world.

    16. GeorgeNYC Says:

      Way to go Boonton!!!!

      I live in New York about three blocks away form the Courthouse. I would gladly volunteer to serve on that jury.

      I worked about three blocks away from the Towers and saw the second plane hit from my office window. I saw the first Tower go down from my home which was about five blocks north of the Towers. I could not get into my home for about a week and my office was closed for about the same time. I luckily did not lose any friends but many of my co-workers were caught up in the dust that permeated Lower Manhattan after the Towers fell. I continued to live and work in Lower Manhattan for the months after the attacks seeing and breathing the smell coming from Ground Zero as the workers carefully removed every ounce of soil to sift it for body parts. I continue to work there today. I suggest that you all read the OpEd in the New York Times today by Charles M. Blow. He captures the spirit of this City and our disdain for the Right’s tough talk but lack of true balls. Because at heart, that is what you all are, cowards, hiding behind your ideology. Sending boys into war that you fail to understand. (And do not for a minute accuse me of hating the troops. My family has sent young men into EVERY War since WWI). I HATE people who lack the moral and intellectual courage to see the stupidity of what is occurring. You are almost as evil as what you claim to be fighting.

      I am personally disgusted by the utter contempt for life shown by the Right in its support of the completely unnecessary Iraq War. Disgusting. A President who failed to ever capture our most wanted criminal and who has wasted THOUSANDS of American lives on a war that had failed to make us safer. (Except of course in the Right’s fertile imaginations)

      This politicization of these trials is equally disgusting. I live in real, constant fear of a true terrorist attack. I suspect most of you sitting in our rugged heartland have never even visited a site that might even potentially be a terrorist target. Although I am sure that you have seen them on TV as background for the Right Wing pundits who you follow religiously and thoughtlessly.

      This City, which holds a special disdain for such Right wing drivel that we see and hear, will never be bowed by the threat of a terrorist attack. Ever. This City will give these terrorists the Due Process that you all seem to ignore and will see them put in jail or to death or whatever the system calls for.

      That’s right. Liberal Elites. That is what we are and that is what we are proud of.

    17. Tom Holsinger Says:

      Boonton,

      Consider that the analogy you attempted to draw about organized crime and juries is so incorrect that it not merely overshadows the point you were trying to make, but adversely affects your credibility in general.

      When in a hole, stop digging.

    18. Norm Says:

      GeorgeNYC, your post contradicts itself. You claim to have witnessed 9/11 atrocity, yet disparage the Iraq war. Some disconnect, there. How do you plan to thwart any further attacks on US soil?

    19. Thing From Snowy Mountain Says:

      Well, he believes there is no link between the Iraq War and the grand War on Terror.

      Anyway, here’s my take on the situation:

      This City, which holds a special disdain for such Right wing drivel that we see and hear, will never be bowed by the threat of a terrorist attack. Ever. This City will give these terrorists the Due Process that you all seem to ignore and will see them put in jail or to death or whatever the system calls for.

      So basically you will give them a trial with all the constitutional rights of the accused, like presumption of innocence, etc., then find them guilty as he knows they are, and see them sentenced.

      ———————–

      I am personally disgusted by the utter contempt for life shown by the Right in its support of the completely unnecessary Iraq War. Disgusting. A President who failed to ever capture our most wanted criminal and who has wasted THOUSANDS of American lives on a war that had failed to make us safer. (Except of course in the Right’s fertile imaginations)

      Just wondering, but do you support the war in Afghanistan? Last time I checked, there weren’t any actual Afghans carrying out the 9/11 attacks, and those people in Afghanistan who did support them were basically a front for other governments, the primary ones of which we must give money to in order to actually get supplies to the troops in Afghanistan.

      The Iraq War was basically an attempt to work at the edges of a situation; the alliance of Saudi Arabia and Pakistan has nuclear weapons, the basic choices we were faced with was a) have a nuclear war and hope there aren’t any cities hit by cargo-container based nuclear weapons (and New York, btw, is very vulnerable to that sort of attack; consider that one could be detonated by a ship in harbor without the bomb even needing to be unloaded or otherwise having to pass through port security with whatever detectors they might presumably have)…. b) ignore the matter, and let Pakistan and Saudi Arabia get away with it for free… or c) Find a way to work around the edges of the problem.

      Just as the Afghan War was an attempt to deprive Pakistan of a client state in Afghanistan, the Iraq war was an attempt to deprive the Saudis of an almost-client state in Iraq. And, IMHO, to buy time for a better idea to come into being.

      Time which the rest of the country wasted, and the elites in the Northeast used to continue to oppose drilling in the US and continue to export an entire industrial sector to the people that attacked you on 9/11 and keep your enemies’ income stream intact.

    20. Boonton Says:

      Norm,

      Certainly you are not implying that supporting the Iraq war is necessary to thwart any further attacks on US soil! That brings me back to my original point. After supporting the Iraq War, after thousands of lives killed, trillions of dollars all to supposedly thwart future attacks you now tell us we can’t have jury trials anymore because we are helpless against almost certain attacks on jury members? If this is the case then people like you and Shannon should choose to live the next 20 years in a self imposed exile of shame. But I’m not going to hold my breath.

      George,

      I too would volunteer for such a jury. Justice is a collective responsibility for all members of society, not a dirty little business that can be quietly outsourced to nameless gov’t agents as people like Mr. Love would have us choose.

      Tom,

      You have asserted based not on research but only on your own ‘thought experiments’ that jury intimidation and retaliation has not been an issue with organized crime because crime families only have a ‘few members’ and wouldn’t ‘stick their necks out’. Only insane, suicidal jihadist groups would be so bold thereby making jury protection a new, post 9/11 problem.

      Let me point you to http://www.rcfp.org/secretjustice/anonymousjuries/survey.html. Anonymous juries have been Federal law since 1861. For an example of a recent case where anonymous juries were used see http://overlawyered.com/2008/03/anonymous-jury-in-scruggs-trial/. In fact they were used in the first WTC bombing which makes one wonder why, with something like nearly a dozen agents in the US on 9/11/01, not a single action was done to intimidate or retaliate against any jury member.

      So let me hit the points home:

      1. The assertion that Islamic terrorists would have a special interest in targeting former jury members either out of revenge for convicting fellow terrorists or to intimidate future jurors from finding terrorists guilty has not been established by nearly two decades of dealing directly with terrorism. BUT I will grant you that the past is not a guarantee of the future and its quite possible such a tactic might be employed in the future by terrorists.

      2. Your assertion that intimidation or retaliation on juries in the past was not a major issue is clearly false.

      2. a. It is false in theory. Intimidating juries has always been a potent tactic from a game theory POV. It is, in fact, a major weakness in the jury system from both sides. A jury can be pressured to either acquit or convict unjustly based on pressure from either individuals with an interest in the case or community sentiment.

      2. b. It is false in history. For at least a century and a half law and courts have addressed the issue of how to preserve juries in the face of potential attack or intimidation. To assert that this is some new uncharted danger is just to expose your ignorance of the subject.

      2. c. As a result of basing your analysis on false theory and false history, your conclusions are likewise false. You present no evidence that the ‘digital age’ makes anonymous juries impossible. In fact, since we know there are plenty of people besides 9/11 Islamic terrorists who have an intense interest in learning who certain anonymous jurors are, I challenge you to present a single case where an anonymous juror was exposed to either the media or to a party with nefarious interests (excluded, of course, are jurors who choose to come forward to seek fame and fortune for being connected to a famous case).

    21. Boonton Says:

      BTW, an anonymous jury has already been decided will be hearing the case of the Fort Dix terrorist.

      This creates an interesting problem for people like Shannon and Tom. OK the shooter appears to have been a ‘lone wolf’ who turned to Islamic radicalism on his own after a period of either depression, mental illness or who knows why with limited to no contact with any larger terrorist organization. Nonetheless, now that the guy has committed a successful terrorist attack wouldn’t Islamic terrorist groups want to help him out? So why wouldn’t they target a jury that decides his guilt even though he technically wasn’t one of their own?

      Beyond that, what about the Muslim accused of a ho-hum everyday crime like murder, rape, theft or whatnot? Couldn’t an Islamist group seek to see them acquitted simply on the grounds of helping fellow Muslims, just as Al Qaeda asserted its support for Muslims killed by Serbs in Europe?

      Following the Love/Tom line of thought, any Muslim accused of a crime must be tried in secret since conceivably their jurors could become targets for Islamic terrorists even if the accused have no connection to terrorism at all. Taking this logic to its conclusion, why limit it to Muslims? How about vocal opponents of the Iraq war since that is supposedly thwarting future terrorist attacks on the US (don’t ask how or you’ll be next on this list of people not eligible for jury trials).

      Franklin had it right:

      They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.

      Shannon, Tom and others do not deserve the liberty or safety they crave. They can accuse me of “think in terms of Aristotlian natures”, but I’d rather be in the company of Aristotle than a sniveling resident of Plato’s cave.

    22. Tom Holsinger Says:

      Boonton,

      I warned you to no avail. Your credibility is toast. I’m a judicial branch attorney and familiar with jury security problems.

      You are now obviously trying to change the subject. The subject was and is attacks on jurors AFTER a trial. Not before a trial and not during trial. After trial. Intimidation and retaliation are not the same thing. You conflate the two in an attempt to change the subject now that I’ve called you on it.

      Name one instance in the past fifty years, in any of the fifty states, of any juror being attacked after trial by persons associated with a criminal defendant whose trial the juror sat on. Just one.

      You can’t.

      Everything you said should be caveated with the knowledge that you invent stuff. You make **** up.

      Almost all concern about jury security is for the period during trial. There has certainly been some concern about possible retaliation against jurors after trial, but historically that simply has not panned out. The reasons for this were explained by Shannon Love.

      The nature of the threat is changing, however, and I specifically referred to the operations of Mexican drug gangs as they are much less inhibited by the bottom-line cost-efectiveness considerations of American organized crime.

      But your historic analogy to organized crime retaliation against jurors after trial is like your credibility – vaporous.

      And you did it yourself.

    23. Boonton Says:

      You are now obviously trying to change the subject. The subject was and is attacks on jurors AFTER a trial. Not before a trial and not during trial. After trial. Intimidation and retaliation are not the same thing.

      Actually they are two sides of the same security coin. Attacking a jury after a verdict can serve to intimidate a future jury hearing a similiar case as well as serving as a signal in other areas. Or it can happen just as pure revenge (either in our hypothetical case of a mafia conviction or in a case where the jury acquits to the chagrin of those who favored a conviction).

      Either way the information needs are similiar. One has to acquire the names of jurors in order to locate them. For the organized crime’s attempt to intimidate a jury the information need is more pressing since it needs to be acquired before the case is over in order for the intimidation to work.

      Almost all concern about jury security is for the period during trial. There has certainly been some concern about possible retaliation against jurors after trial, but historically that simply has not panned out. The reasons for this were explained by Shannon Love.

      Since you claim to be “judicial branch attorney ” you are certainly aware that there are several levels of ‘anonymous juries’ that range from the simple not releasing jury information to the press, to not releasing it until after the trial all the way up to the level where the jurors are simply numbers and even the lawyers do not know anything about them except the broadest of demographic data.

      If you have been so engrossed in your work in other areas of the judicial branch, though, you could have certainly found this information out by reading the rather brief link I provided regarding anonymous juries.

      Name one instance in the past fifty years, in any of the fifty states, of any juror being attacked after trial by persons associated with a criminal defendant whose trial the juror sat on. Just one.

      Tricky but there are certainly cases where concerns about post-verdict intimidation, retaliation or simple harassment have been considered by the legal system. For example:

      https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=12+N.Y.L.+Sch.+J.+Hum.+Rts.+311&srctype=smi&srcid=3B15&key=cbc7cd641b0319441ab612133b46e60f

      While I’ll continue to search, I’ll ask you to present any evidence that such a case HAS NOT happened. Or at least present evidence that people who worry about jury tampering, intimidation and so forth are only think about it happening during the trial phase and not post-trial. This will be tricky for you since the highest levels of anonymous juries feature not only secrecy during the trial but after the trial.

      The nature of the threat is changing, however, and I specifically referred to the operations of Mexican drug gangs as they are much less inhibited by the bottom-line cost-efectiveness considerations of American organized crime.

      You are wrong about the theory for reasons I’ve already explained. POst-trial intimidation works by making it harder to gain convictions on future trials. This would be more effective against ‘old school’ organized crime ala The Godfather, where the organization has a continuing presence and the larger community has some awareness of who is and isn’t a member. The weapons law enforcement cultivated against this type of mafia are designed to short circuit the ‘continuing presence’ meme of the organization.

      But your historic analogy to organized crime retaliation against jurors after trial is like your credibility – vaporous.

      Hey dude, I’m the one who actually brought up real life cases, real life laws and policies regarding jury security. You failed to even begin to address this despite your post facto claims to be a ‘judicial lawyer’. I don’t need credibility, I don’t ask anyone to take anything I say on trust. I present my facts and logic they stand alone because they are sound. Anyone here is free to check them and point out any serious flaws. You, though, stand on nothing and at the end of the day you try to toss around the claim that you have secret knowledge (meaning knowledge the rest of us don’t have and can’t easily access) by your job as a ‘judicial lawyer’.

      In other words, your argument now has suddenly become “I know stuff you don’t and can’t find out unless you choose to work a career in ‘judicial security’ therefore you must accept me as an expert on this subject and just shut up and take my word for it”. Of course you didn’t bother to mention this first hand expertise when you were just agreeing with Shannon or addressing my first objections to the post. Your latest gambit sounds like the Hail Mary pass of the credibility deficient.

    24. Trent Telenko Says:

      Booton,

      The KSM jurors and their families are by definition soft targets after the trial, because as you said, law enforcement does not believe post-trial retaliation is possible based on the “Mafia model.”

      There is no statute of limitations on Jihad. The cost benefit ratio for Religious Kamikazis is not something the American judicial system is famiiliar with in its english common law tradition.

      And the folks practicing Jihad don’t have to do anything other than suggest targets to Muslims of the proper mental religious/mental state to act on. Something the Saudi-Wahabi lobby is making sure there will be more of to the tune of billions a year across the globe.

      See this August 31, 2007 MEMRI post and think through the implications for KSM jurors:

      http://memri.org/bin/latestnews.cgi?ID=SD170207

      On August 26, Islamist websites hosted in Minnesota [SiteGenie, LLC, Rochester, MN] posted an item titled “How to Join Al-Qaeda.” It is not clear when the item was written; it was produced by the website Al-Thabitoun ‘Ala Al-‘Ahd, which is affiliated with Al-Qaeda in Egypt and is currently inactive.

      The item calls on every Muslim to regard jihad as a personal duty and to take initiative to establish a jihad cell without waiting for recognition from Al-Qaeda. It goes on to elaborate on how to form and run the cell, how to raise funds, and how to select a target, “for example, assassinating the American ambassador,” which, it states, “takes no more than a gun and a bullet.”

      Some of the people reading this material will engage in spontaneous jihad syndrome because they are fighting a religious war, not engaging in crime.

      And after such attacks, the FBI, the Justice Department and the Mainstream Media will deny the jihadi connection just like they did with Major Hasan.

      The American people will draw different conclusions, act upon them and the surviving elected polticians will listen to those different conclusions.

    25. Boonton Says:

      Trent

      The KSM jurors and their families are by definition soft targets after the trial, because as you said, law enforcement does not believe post-trial retaliation is possible based on the “Mafia model.”

      False, from a game theory POV post-trial retaliation IS a danger with the ‘mafia model’ since a successful post-trial ‘hit’ will intimidate future juries. This is one of the dangers courts and lawmakers addressed when formulating the protocols for anonymous juries. You’ll note the highest level of anonymous juries keeps the jury anonymous even after the trial is complete and the verdict returned.

      The war against a mafia directed itself against attacking the ‘continuous’ aspects of the mafia in order to break the long term loyality the mafia had both from its members and the larger community.

      Once again this assertion that law enforcement and law makers viewed the danger of jury intimidation/retaliation as only existing during the trial is just false. I challenge you to present anything that backs up your assertion that isn’t stuff you’re making up in your head or assertions that you have access to ‘secret knowledge’ or whatnot in your real life job that we just have to take your word for.

      There is no statute of limitations on Jihad. The cost benefit ratio for Religious Kamikazis is not something the American judicial system is famiiliar with in its english common law tradition.

      That’s nice, however it has nothing to do with the security of the judicial system.

      Some of the people reading this material will engage in spontaneous jihad syndrome because they are fighting a religious war, not engaging in crime.

      And so it begins. Why bother with determining motive? A Muslim accused of a simple crime might become someone jihadists want to support. Why limit it to Muslims? The logic of this thread points towards abolishing just about all jury trials. As I said, Franklin was right, people like you deserve neither security or freedom. Fortunately you have it because more honorable people than you know better.

    26. Boonton Says:

      More facts:

      http://volokh.com/2009/11/22/yoo-v-goldsmith-on-the-ksm-trial/

      Post 9/11 Terrorist trials and/or convictions in civilian courts by some other President:

      Shoe Bomber Richard Reid
      Jose Padilla
      American Taliban John Walker Lindh
      Lackawanna Six
      Zacarias Moussaoui

      Isn’t it odd that only now did certain people suddenly notice that 9/11 ended jury trials, or at least civilian jury trials and only an insane President who cared nothing for the American people would even consider having one?