AnnotatedOpinions.com

. . . So why is Attorney General Eric Holder [putting Khalid Sheik Mohammed on trial in a civilian court]? Ostensibly, to demonstrate to the world the superiority of our system, where the rule of law and the fair trial reign.   

Really? What happens if KSM (and his co-defendants) “do not get convicted,” asked Senate Judiciary Committee member Herb Kohl. “Failure is not an option,” replied Holder. Not an option? Doesn’t the presumption of innocence, er, presume that prosecutorial failure — acquittal, hung jury — is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place. . .

[AO: Since Attorney General Eric Holder announced that KSM would be tried in a civilian court, one of the constant attacks on his decision has been, essentially, that we cannot allow a civilian court to try KSM because we know or believe that he is guilty and therefore subjecting him to a civilian trial makes mockery of our judicial process. Ostensibly because we know or expect the outcome and cannot presume him innocent and know/believe the outcome at the same time.   

The first problem is the insinuation that trying guilty people using our civilian court system can make a mockery of our civilian court process but not of military tribunals. In other words, the thinking seems to be that military tribunals are so below our civilian court system that it is acceptable to try guilty people there but not acceptable to try guilty people in our civilian courts. Am I the only
one this thinking seems absurd to? Are Holder’s critics suggesting military courts are but a step above kangaroo courts? Do they really care about the trial part of the military tribunals or simply the conviction? In other words, do they see military tribunals as a means to validating whatever outcome they’ve already decided is appropriate?  

The second problem is somewhat existential. The critics seem to think that there is a problem with Holder trying KSM if Holder and the courts cannot presume KSM’s innocence. Let’s consider an example. Say, during the Super Bowl a spectator-supporter of the loosing team runs onto the field after the end of the game. He pulls out a gun and while being watched by millions of Americans shoots a referee he thinks caused his team to loose. The Attorney General for the state in which the game was played is at the game. He and million of Americans watch this tragedy unfold. The shooter stands there after the shooting, gives himself up and confesses. Can he be tried in a civilian court or would some other tribunal be necessary? 

Here we have a man who the attorney general knows to be guilty. Will trying him in a civilian court, which has to presume him innocent, make a mockery of our judicial system? The answer is obviously a resounding “no.” This is similar to the KSM case. Just because we know/believe he is guilty doesn’t mean that because we expect he’ll be convicted he cannot be tried in a court of law that presumes his innocence. If that was the case, we would be unable to try the shooter in my hypothetical in a civilian court.  

The writer of the opinion excerpted above, Charles Krauthammer, makes numerous other arguments against trying KSM in civilian court. See the link below. However, also see the opinion by Jim Comey and Jack Goldsmith, both attorneys in the Bush administration, explaining why Holder made a reasonable decision here.]