Since When Do Prosecutors Decide the Type of Trial?

In his post, “Why Has Holder Decided to Try Khalid Sheikh Mohammed in a Civilian Court?” [h/t Instapundit], Eric Posner says:

Then what is the answer? It is surely this: the Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.
 
This approach makes sense. Endless detention without trial is no longer a politically viable option. The government will make a judgment as to whether a suspect is dangerous or not. If the case is good, the high-quality system will be used. If the case is bad, the low-quality system will be used. In this way, the government can ensure that people it thinks are dangerous will be locked up.

What the hell? Since when do we allow the executive branch to decide the type of trial a defendant receives based on the quality of the evidence the executive branch decides to use? Since when do we give the executive branch any say in how trials are conducted at all?

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How Obama is Bringing Martial Law to America

In my previous post, I listed some (but far from all) of the practical problems presented by trying in a civil criminal court an individual (1) who was captured overseas, (2) had evidence against him collected using covert means, with (3) no chain of evidence or custody, and (4) was harshly and physically interrogated with (5) all witnesses and methods being secret.

The greatest danger posed in the trial of Khalid Sheikh Mohammed (KSM) isn’t that he will go free. The greatest danger is that he will be convicted and that during his appeals the courts will ratify all of the extraordinary measures used to capture and convict him. The great danger is that the courts will ratify the rough, inaccurate and ambiguous norms of martial law as applying to all civil criminal trials.

After a couple of decades of these court decisions reverberating throughout the legal system, we could end up living under de facto martial law.

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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?

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Anniversary Comparison

Amazon search on “revolution 1848“: 17,292 results

Amazon search on “revolution 1989“: 7,972 results

The “Wacky Sitcom Mixup” School of Foreign Policy

The very first episode of the “I Love Lucy” show established a template for all of the sitcoms to follow. The episode, titled, “Lucy Thinks Ricky Is Trying to Murder Her” has the archetypal sitcom plot:

Lucy is absorbed in her mystery/suspense novel…Later on, Lucy over hears a conversation Ricky is having with his agent and misunderstands the phone call, as she is only able to hear Ricky’s end of the line. She then comes to the mistaken conclusion that Ricky is going to kill her, based on the novel’s plot and Ethel’s card reading. [emp added]

Much wackiness ensues. The device is as old as comedy itself. See Shakespeare and the Greek comedies. Character A misunderstands something Character B did or said and then takes action based on that misunderstanding, with comedic consequences. Most importantly, the resolution of the plot occurs when the misunderstanding is cleared up by explicit and honest communication. Everyone hugs and all is forgiven.

Bryon York asks:

A lot of observers are having trouble figuring out the philosophical underpinnings of Barack Obama’s foreign policy. How does the president see America’s place in the world? How will he use American power? How much does he care about such things?

I think Obama et al believe that all of life’s problems are ultimately just the result of miscommunications and misunderstandings like those that drive a sitcom plot. Obama views himself in the role of the wise character in the sitcom who puzzles out the misunderstanding and brings all of the characters together for hugs at the end.

Let’s call this the “Wacky Sitcom Mixup” school of foreign policy.

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