Why It Is So Important that KSM Be Tried

For many people, the idea of trying the man who admitting to plotting and funding the 9/11 attacks is mouth-watering. After 8 1/2 years, those who lost family members, friends, loved ones, and Americans in general will finally get the justice we craved so much it’s lead us into two wars. So when I read this I was a little surprised.

Apparently despite being in government himself, our buddy Lindsey has little faith in our criminal justice system. According to Graham and some of his collegues, trying Khalid Sheik Mohammad is too important to follow our Constitution. They believe that since we are at war (illegal war without a congressional declaration), KSM is equivalent to a soldier in the battlefield and should be tried by military tribunal. Not only should it use a military court, but it should use the  “Military Commissions Act of 2006,” adds John McCain.

I’ll give you a second to wipe the tears from your eyes over the laughter that argument caused.

Let’s look at this argument piece by piece for those who cannot see its absurdity. First off is the idea of these men as POWs. Though I quipped about this above, it’s really just that simple. If Lindsey wants them tried as POWs he has to only do one thing:  get a true declaration of war from congress. Of course this brings its own problems when you fight a war against a tactic. Yet until we have a true declaration, these men must be treated as foreign nationals. Judge Nap really says it better than I ever could in this article.

To get around this there is the presidential extra-constitutional label of “enemy combatant.” But of course the foundation for this is rooted in the Unified Theory of the Executive. As I have written earlier I urge everyone to understand this constitutional theory to see just how insane it is. The federal government has no “extra-constitutional” powers. Why even have a constitution if it can be expanded without precedent or textual foundation?

Secondly, we can look at Sen. McCain’s call for use of the MCA. For those that know nothing about the MCA here is quick list as to why it is the authorization for the biggest kangaroo court in US history.  The list alone should make everyone cringe. To add to this insanity the SCOTUS has ruled in Boumediene v. Bush that “enemy combatants” have Habeas Corpus rights, yet even after the trial the government can still indefinitely detain them.What honor are we paying to the victims of his crime, to the soldiers whose lives have been lost fighting against tyranny like this? I know they want justice, but all the MCA creates is what most government gives you:  the illusion of justice and security. 

The real terror that comes from this is not what will happen to KSM or his comrades. It is the precedent that this will set should Graham and his pals get their way.  What this all ties into is the use of “enemy combatant” labeling. Despite what they might think, just because we call it a war doesn’t mean it is. As stated above, war must be officially declared before those legal rules can be applied. The creation of the “enemy combatant” status circumscribes legal foundations to strip individuals of their rights. Once your rights are stripped from you, you can then be sent to a military commission where you and your lawyer — should you even receive one –are denied access to evidence being used to bring up charges that can even end with a sentence of execution.

What Graham is trying to do, whether inadvertently or not, is set a precedent where all people suspected of terrorism and jailed in our “War on Terror” are tried by only military tribunal. If terrorism is a military matter then why was Tim McVeigh not tried in a tribunal? Or more recently, the Dr. Tiller murderer? Both of these men carried out actions which match the criteria of terrorism, yet both were brought up on premeditated murder charges, tried in civilian court, and convicted. A crime is a crime; motivation should not be brought to bear when determining how to try these cases.

I suspect that Graham wants this because he knows, like any defense lawyer, that coerced evidence is inadmissible in criminal court. When you waterboard a guy 183 times in a month, it’s easy to say that maybe his confession isn’t on a solid foundation. What better way to deny any further investigation into both the governments failures that lead to 9/11 and the policies of torture that followed then to make the evidence used against KSM unknown and classified?

Personal feelings aside, Graham seems to miss the entire point of bringing these criminals to trial. What is important is why we have trials to begin with:  to remedy a tort action from one actor to another. Graham feels that this can only be accomplished by gutting our legal system so exact his venetta against terrorism. While I can admit New York City might not have been the best choice for emotional and security reasons, Guantanamo is most definitely not the answer.

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