At first blush, it seems to make a
lot of sense. As National AG, Eric
Holder says, paraphrased, let them have their justice rendered within blocks of
the National Memorial where the Twin Towers that they destroyed used to stand. Unfortunately, that is also the prima facie showing on the criminal defense
side of our judicial system in support of a motion for a change of venue for
the trial on the basis that nobody could ever hope to have a fair trial if
conducted in the literal shadows of this horrendous crime against humanity
where thousands died so horribly on national TV and in reality.
I know, I know . . . we all have
our image of the quintessential old-timey situation where they catch the horse
thieves and somebody yells out -‘Let’s hang ‘em from the nearest tree,’ and
then somebody else, usually the justice of the peace, yells out – ‘No, let’s
give ‘em a fair trial first, then
let’s hang ‘em from the nearest tree!’
But, that is not what our legal system stands for in the modern post
WWII era, not since the Nuremberg Trials anyway.
It is our American national pride
that we can show the world that we will give even the most despicable forms of
human life – those who would mass murder strangers – a decent, constitutional,
fair trial and demonstrate to all, especially those in the Arab world, governed
largely by despotic dictators and pre-reformation religious figures, who need
to see it working, that we can do this.
But, there’s a few little things
here that are going to make this a unique challenge for our legal system and I
just want to linger over them for a couple of moments here. First, the Southern District of New
York Federal Court is like the Yankees – they are the Big Time – the best, most
competent of prosecutors; the best, most learned of judges. These courts have already put away
nearly 200 terrorists in lockup where they will never ever again walk among
civilized people or see the light of day, except for that hour out of each 24
when they are given exercise like your dog in a dog run alongside your house – then, back in their cages; frankly,
where they belong.
Torture taints a criminal legal
prosecution like old rotting food ruins the remaining contents of your
refrigerator. KSM (Khalid Sheik
Mohammed), whose photo, when captured in Pakistan, that you see all the time in
the media, looks like John Belushi on a really bad night, confessed to being
the "Mastermind of 9-11." Then,
after confessing, the government has acknowledged that they waterboarded KSM some183 times to get more
information on exactly what he did.
His defense will argue that 183 waterboarding episodes constitute
torture, hence tainting (as in rendering inadmissible) virtually everything KSM
said, except the original boastful confession. That will present difficult issues based on our stare decisis system of precedent,
whether you believe waterboarding is or is not torture.
Then there is the problem of making
the trial into a circus where KSM and his expected antics will get free,
worldwide satellite TV feed into Al Jazeera and, based on these videos (which
will circle the globe on U-Tube and other cyberspace sites faster than you can
read this sentence) and a Billion Muslims will be urged, and recruited from, by
some connivers who do not have the guts to blow themselves up, to act, and thus cause more terror for NYC.
NYC has taken its lumps and then
some since 9-11-01. One thing NYC
does not need now is to be made the worldwide focus for more nutcases coming to
wreak havoc in the Big Apple because the KSM trial attracts them like flies to
fresh manure.
And last, but surely not least, is
the Big What If – what if somehow, no matter how improbable, no matter how
maddening, KSM and his Boys from Gitmo were to get off on a legal technicality,
and walk free from lower Manhattan to the nearest Starbucks for a cup of Jo’ and
a muffin? Could it happen? Would America stand for it?
All this and more is coming – soon
– on a small, or enormous screen – right there in your living room. The people over at Court TV are
salivating.