Democrat theme of the week: “Let’s not ‘cower’ over KSM civilian trial”

Posted by: ST on November 18, 2009 at 9:55 am

Because (mostly) conservatives are objecting strongly to the Obama admin’s disgraceful decision to try the self-professed “mastermind” of 9/11 – KSM – in a civilian court, this week’s talking point amongst the left contains some subtle, and in some cases not so subtle, accusations that those who would prefer KSM be tried in a military court rather than a civilian court are “cowards.” First up, Sen. Patrick Leahy (D-VT):

Military tribunals are the appropriate setting for the trials of suspected 9/11 terrorists and the tribunals have the added advantage of safeguarding the nation’s security and intelligence operations.

Yet Attorney General Eric Holder wants to try five 9/11 suspects in open court near the scene of the crime in New York City.

Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, said in defending Holder’s decision: “I don’t think we should run and hide and cower. Let’s use our system.”

Far left icon Markos Moulitsas:

American liberals are tough on terrorists and secure in their knowledge that the Sept. 11 conspirators are guilty of mass murder. American conservatives are timid cowards who fear that the U.S. government can’t actually prove that the Sept. 11 killers committed their heinous crimes. Sound weird?

Maybe. But what else can be concluded after watching conservatives collectively lose their heads over President Barack Obama’s easy decision to try Sept. 11 mastermind Khalid Sheikh Mohammed and four other co-conspirators in U.S. District Court in New York City? Seems that macho conservatives are terrified of shackled terrorists in orange jumpsuits and the United States Constitution.

“This decision is further evidence that the White House is reverting to a dangerous pre-Sept. 11 mentality: treating terrorism as a law enforcement issue and hoping for the best,” wailed House Minority Leader John Boehner (R-Ohio), panic-stricken that the federal criminal justice system wasn’t up to the task of protecting him.

Conservative hack Bill Kristol of the Weekly Standard fretted: “In open court, it will be Khalid Sheikh Mohammed who will hold forth, mocking his victims, exulting in the suffering of their families, ridiculing the judge, his lawyers and the American justice system, and worst of all, rallying his jihadi brothers to kill more Americans … just blocks from where 20,000 body parts were dug out of the rubble of the Twin Towers.”

Kristol’s words were as inflammatory as they were cowardly, betraying a sad fear that the pathetic Mohammed could shout out, “Allahu akbar!” in a courtroom and … what? Generate sensationalistic headlines in the New York Post? Immediately convert millions of Americans into radical Islamic extremists? Give slacking terrorists new resolve to attack America?

Last but not least, AG Eric Holder, defending the decision to have a civilian trial for KSM in NYC:

In his testimony before the Senate Judiciary Committee today, Eric Holder will say, according to the Associated Press, that “I have every confidence the nation and the world will see him for the coward he is….I’m not scared of what (Mohammed) will have to say at trial and no one else needs to be either.” And, “we need not cower in the face of this enemy. Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready.”

8 years after 9/11, these morons still apparently don’t get it. This has nothing to do with ‘cowering’ in the face of KSM. How dare the Attorney General of the US insinuate that the opposition to holding KSM’s trial in a civilian court has anything to do with being “cowardly”? The issue at hand is what sensitive information will be revealed in a US court of law, since KSM is being tried as a murderer in a civilian court, rather than as a suspected terrorist in a military court.

Supposedly – in spite of the fact that many other Gitmo terrorists will indeed be tried by a military court – the Obama administration wants this high-profile trial to be a “beacon” to other parts of the world, to show, in particular Muslim countries, how our justice system can be fair. But the underlying rationale for putting on this show trial, as I’ve already discussed here, is not to put KSM on trial and to provide justice to the 9-11 victims but instead to try the Bush administration and in the process reveal potentially damaging sensitve information about our intelligence collecting operations. Andy McCarthy, no stranger to trying suspected terrorists in a civilian court himself, explains:

The Obama Justice Department teems with experienced defense lawyers, many of whom (themselves personally or through their firms) spent the last eight years volunteering their services to America’s enemies in their lawsuits against the American people. As experienced defense lawyers well know, when there is no mystery about whether the defendants have committed the charged offenses, and when there is controversy attendant to the government’s investigative tactics, the standard defense strategy is to put the government on trial.

That is, Pres. Barack Obama and Attorney General Eric Holder, experienced litigators, fully realize that in civilian court, the Qaeda quintet can and will demand discovery of mountains of government intelligence. They will demand disclosures about investigative tactics; the methods and sources by which intelligence has been obtained; the witnesses from the intelligence community, the military, and law enforcement who interrogated witnesses, conducted searches, secretly intercepted enemy communications, and employed other investigative techniques. They will attempt to compel testimony from officials who formulated U.S. counterterrorism strategy, in addition to U.S. and foreign intelligence officers. As civilian “defendants,” these war criminals will put Bush-era counterterrorism tactics under the brightest public spotlight in American legal history.

This is exactly what President Obama and Attorney General Eric Holder know will happen. And because it is unnecessary to have this civilian trial at all, one must conclude that this is exactly what Obama and Holder want to see happen.


By transferring this case to civilian court rather than leaving it to be handled by the military-commission system created by Congress, Obama and Holder have needlessly created a perilous dilemma. Do we deny KSM & Co. the right to represent themselves and thus risk reversal of any convictions on Sixth Amendment grounds? Do we grant them self-representation but withhold critical discovery and thus risk reversal on due process grounds? Or do we grant them self-representation and disclose directly to our wartime enemies the nation’s security secrets, which they can then pass on to confederates who are actively targeting us for mass-murder attacks?

In the military court, there would be no such dilemma. Indeed, in the military court, this case would be over now. If President Obama had simply let it proceed, there would have been no trial, and these war criminals would be well on their way to the execution of death sentences.

But then the Left would not have gotten its reckoning. Can’t have that.

Spot on.

Hmmm. Let’s see. You’ve got one side desiring to protect sensitive intelligence information from the eyes of Islamofascist thugs who want to kill Americans abroad – including our troops in Iraq and Afghanistan – and both military officers and civilians here at home, a side hungry for justice to be carried out against admitted terrorist brutes like KSM, and you’ve got some on another side that is operating under the shameless pretense of “wanting justice” for 9-11 victims but who in realilty apparently have no problem with the possibility that sensitive national security information will be revealed in the process – and in fact wishes for such information to be revealed in order to put the evil Bush admin on trial, a side where not many are particularly interested in justice for the 9-11 victims but are apparently more interested in being pro-“justice” against their political opposition – a position that presents a clear danger to both Americans and their interests both at home and stateside. This isn’t about “justice” for the left – it’s about “revenge.” Interesting, when you think about it, because they’ve been telling us for years that the courtroom is not supposed to be about “revenge” but about “fairness and justice under the law.”

Um, just who are the “cowards” again?

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26 Responses to “Democrat theme of the week: “Let’s not ‘cower’ over KSM civilian trial””


  1. Carol says:

    Maybe the “next 9/11” will wake up the ignorant jerks who have forgotten about 3,000+ Americans slaughtered at the hands of the “criminals” enjoying their vacation at Gitmo.

    Damn it, I’m pissed!!!!

  2. NC Cop says:

    Being concerned is not “cowering”. God help them if anything happens as a result of moving this trial to NYC.

    God help them.

  3. bill glass says:

    put simply, these clowns are again ‘projecting’…..what they think about someone or something is what they accuse the loyal opposition of – holder has used that one before, too, regarding the subject of racism; politically, the moving of the terrorists to nyc for trial is ‘over the top’ and indefensible…polls show that the american people are overwhelmingly opposed.

  4. FUKos says:

    We’ve already heard what American liberals like Markos had to say about the death of Americans and the desecration of their bodies:


    F*ck you, Kos. Go crawl back into your hole.

  5. Kate says:

    The idea of painting conservatives as cowards is interesting. What would these liberals know about valor? Where have they ever taken a stand to defend American,abroad or at home.

    You would think the touch-feely, emotion ridden liberals would have a heart for the victims of 9/11 since they are the biggest advocates of victim-hood of all kinds. But, no, now they are siding with the terrorist in the guise of constitutionality.

    I was horrified to hear Gov. Ed Rendell say it was almost a fact that these terrorist would be guilty…now where is that old “Innocent until proven guilty” thing? If I was a lawyer for these pieces of human filth I think I would certainly assert that they couldn’t get a fair trial with those kinds of comments. How do you seat an impartial jury? I smell ready appeals to any quick conviction.

  6. Bill says:

    Aren’t these the same brave, tough on terrorists, Liberals that tried everything in the book to force the U.S. military to throw down their rifles and run away from Al-Qaeda in Iraq….before finally being overcome by the real brave heroes in this country who untied the hands of the military and allowed them to win in against Al-Qaeda in Iraq?

    So the bottom line is these Liberals think their strategy with the terrorist trials in NYC will be successful….even though all their strategies against terrorism up to this point have been unsuccessful?

    Oh I almost forgot…they are still working on their top strategy of fighting terrorism by attempting to prosecute CIA agents and members of the Bush Administration over their tough strategy against terrorists. We’ll see how successful that strategy will be in the war against terrorists.

  7. I’m probably what most readers of this site would call a “liberal.” I don’t think of myself that way, but I suppose that my own opinion in that regard isn’t really all that important. I would state that KSM and all the rest of these criminals should be tried and given due process. Because criminals is what they are, and that’s how we treat criminals.

    But unlike, for instance, DailyKos, I have no particular problem with a trial before a military tribunal. If the evidence involved of necessity requires the finder of fact to consider sensitive or classified information, then a military trial or some other kind of closed forum may very well be the way to go. Yes, there is a Constitutional right to a public trial, but no Constitutional right is absolute. There are limits to the rights of free speech (libel laws, for instance); the right of gun ownership (convicted felons can and should be restricted from owning weapons); and the prohibition against unreasonable searches does and should relax in appropriate exigent circumstances. The right to a public trial may similarly also bow to a compelling governmental interest.

    As I see it, the demands of due process would be satisified if a District Judge reviewed the information the government intended to base its prosecution on in camera and made a finding that it was of such a nature as to require a closed trial, maybe even before a military tribunal, in the interest of protecting national security. The Judge could also restrict KSM’s choice of counsel to an attorney who could pass a security clearance. Maj. Hasan, the (alleged) shooter at Ft. Hood, has a competent and entirely trustworthy lawyer who appears to be doing a good job for his client — so that our justice system works right. There is no reason I can think of that KSM cannot get the same sort of treatment.

    Due process would be satisfied in my mind when an independent judge reaches these conclusions and imposes appropriate orders, and these seem to be rather obvious conclusions to reach. It can also be done in such a way to avoid show trials intended only to cast aspersions on the previous Administration, which is an obviously inappropriate use of a criminal trial in which a man’s life is at stake.

    Kate is right that an “impartial” jury will be difficult to find, but KSM’s infamy is so widespread that this will be equally true in any court anywhere in the country, not just New York. And yes, there is that whole “innocent until proven guilty” issue, but KSM confessed — and did so before he was (allegedly) tortured; he did so in the context of bragging to his captors about his own brilliance and cleverness.

    My point here is that it is a false choice between preserving our national security and adhering to our cherished Constitutional ideals. A common-sense approach to the situation reveals that we can easily have both, and we can rest assured that a fair process will produce a fair result — which in this case will surely mean a sentence of death for the excerable KSM.

  8. Carlos says:

    Not being a lawyer and all, Transplanted Lawyer’s arguments seem to make sense.

    Except that, these clowns are not citizens and have no rights under our Constitution because they are (alledged) captured enemy combatants who forfeited any rights when they plotted against or fought against our military forces. They technically, from what I understand, don’t even have the cover of the Geneva Conventions.

    Seems to me Duh-1 and his sycophantic minions are doing everything in their power to give al Qaida every bit of military information they can under the guise of “fairness” so the enemy can rework their strategies and do even more harm to the United States.

    What happens when bin Laden is captured? Do we read him his Miranda rights before questioning? The way this is all turning out (what with civil court trials and all) they’d better.

  9. CB says:

    T-Law: Although most conservatives like me would have been okay with giving the Gitmo detainees military tribunals, we generally don’t believe the prisoners are entitled to the protections of the U.S. Constitution. They are not U.S. citizens, weren’t arrested in the U.S., weren’t arrested based on any violations of the U.S. criminal code, and have never stepped foot on U.S. soil.

  10. CB says:

    Can someone remind me why it’s necessary to close Gitmo in the first place? If the plan is to stick these people in a prison in Illinois, exactly how does that constitute an improvement over their current status? It seems to make about as much sense as forcing the Birmingham transit authority to buy all new buses after the old ones were desegregated.

  11. jeff says:

    Truly an excellent post, Sister, and I have linked to it.

    And I’ll echo the sentiments of Carlos. Constitutional protections like due process, are afforded American citizens, not those who might participate in a war against us, and particularly not those who would orchestrate such a war. These folks didn’t rob a convenience store or sell crystal meth at the high school. They used improvised weapons of mass destruction to murder Americans, because they were Americans, and smashed symbols of American singularity in the process.

    Any pretense that Obama’s/Holder’s intentions regarding this decision are honorable (or even redeemable, for that matter) is utterly dispicable. Obama, the Muslim, will benefit from ramping up the global mockery of America. To him the Constitution is “just a piece of paper.” To him, American Liberty is something to abhor and deride. To him, giving voice again to KSM is one more big “I-bow-to-thee” to the terrorists of the world.

    Obama wishes to bring about a toothless America, because global socialism cannot exist alongside a strong and prosperous America.

  12. I don’t view the provision of due process to these folks as something to which they are entitled. Rather, I see it as something the government is obligated to do. It’s not a question of the extent of their rights, but rather the limits of our government’s power. We have a Constitution that sets up a government of limited power, and that means something — it means that we are free.

    Jeff, you in particular are headed down a slippery slope here — if we suspend our Constitution for the sake of al-Qaeda prisoners, then maybe we’re willing to suspend it for guys like Nidak Hasan. And from there maybe we’re willing to suspend it for a child rapist. And from there a murder, and from there the drug dealer you write about. It’s not about how detestable the accused’s crimes are. It’s about us holding ourselves and our government to our own standards, for own own sake.

    In this time when we have good cause to mistrust the government and in particular the executive branch, I’m a little bit surprised that this point should need to be clarified to a bunch of self-identified conservatives.At the end of the day, bin Laden cannot destroy America — he lacks that power, and he always did. But we Americans have that power. I will not sacrifice our Constitution for the sake of human filth like bin Laden and KSM, no matter how detestable they are.

    But I didn’t post here to troll for an argument about civil liberties, Constitutional law, or criminal procedure. I wanted to demonstrate that it is possible to have both security and due process; we don’t have to choose one over the other.

  13. CB says:

    T-Law wrote: “It’s not a question of the extent of their rights, but rather the limits of our government’s power. We have a Constitution that sets up a government of limited power, and that means something — it means that we are free.”

    You’re missing the point. The Constitution doesn’t constrain the government’s power over the rest of the world. If it did, FDR would have been required to get court approval before ordering the Normandy Invasion. The Constitution only limits the government’s power over citizens of the U.S. (and over the states themselves). To believe otherwise implies that the Constitution represents a compact of the states to constrain America’s inherent national sovereignty.

    America is free to CHOOSE to give foreign terrorists “due process,” whatever that implies; but for anyone to argue that this is REQUIRED by the Constitution is seriously mistaken. Sorry if this sounds like I’m quibbling with your argument. I’m not willing to let this point slide just for the sake of being tractable.

  14. bill glass says:

    cb – i’m with ya…plus, if you’re getting paid by the word, you’re way behind.

  15. But, TL, didn’t KSM already confess – essentially admit his guilt? Isn’t it SOP that in both civilian court and military tribunal that if the defendant confesses all that is left to do is the sentencing phase?

  16. Carlos says:

    Ah, ST, there’s the rub. It takes but a stroke of the pen and KSM’s confession goes the away, inadmissible. And it would be fairly easy in NYC to find a judge who would do that for our glorious leader.

    And CB, you’re spot on relating that the Constitution binds the government only to its citizens and the several states, and has nothing whatsoever to do with protecting the rights of other nations or their citizens at war with the United States.

  17. jeff says:


    The notion of “suspending” our Constitution isn’t applicable, because KSM and Bin Laden aren’t American citizens. There can’t be a suspension of something that you weren’t entitled to, in the first place. This was exactly my point. It isn’t a matter of law, as applied to a citizen, but of a response to an enemy who seeks only our destruction. Not a criminal…an enemy. And one who seeks not our compliance, or our wealth-spreading, or our hands of sympathy, or our unicorns.

    They wish to have us (all of us) dead, or in submission. It’s a war, and it’s far from over. There is a slippery slope, and this administration has put us on it.

  18. CB, on the one hand, yes this is a quibble because we seem to agree that if KSM gets a trial before a fair military tribunal, that would be due process. On the other hand, it’s not a quibble because I think your framing of this issue is fundamentally different than mine, and that reveals two different conceptions of what the Federal government is. That’s a worthwhile discussion to have because within it lies two contrasting ideas about the future of our country.

    Now, I think that the Constitution IS a compact of the states to constrain and define the power of the national government. That’s admittedly a little bit different than your phrase “to constrain America’s inherent national sovereignty,” but I don’t want to ignore your point. The “sovereign” is the American people, not the Federal government. They work for us, remember?

    Further, the highest and most binding expression of the will of that sovereign is the Constitution — which created, and at the same time limited, the Federal government. The entire point of having the Constitution in the first place was to balance the need for an effective national government while at the same time limiting its powers in such a way as to preserve the freedoms for which Americans had fought the Revolution. So to hold the government’s feet to the fire so as to make sure its actions are legitimate, each and every time it tries to do something, is the most basic exercise of sovereignty by a free people that I can even imagine. When the government exercises the awesome power of life and death, it is especially appropriate to exactingly hold the government’s feet to the fire.

    The question is “what powers does the Federal government legitimately possess?” and therefore the distinction between an accused “foreign terrorist” (the presumption of innocence applies even to a guy like KSM) and “some actually innocent but fantastically unlucky schmuck who was in the wrong place at the wrong time” becomes unimportant. What is important is whether the government exercises its legitimate powers or whether it exceeds them.

    I would not agree that the Constitution limits the legal power of the government over the rest of the world. As a legal matter, there is no such power to limit. Our inherent legal power as a sovereign people ends at our national borders; our legal powers elsewhere in the world are derived from treaties and similar legal arrangements which are all, as a matter of law, subordinate to the Constitution itself. The United States has no legal power over the rest of the world — absent a Congressional declaration of war (something which FDR had, which is why he didn’t need to go to court to invade Normandy). As a practical matter, we have overwhelming military power over anywhere we choose to project it. But we rightly seek legal authority for using that military power whenever it is practicable to do so, in the form of (for instance) a declaration of war or a treaty.

    Now, since you mentioned World War II, please consider the Nuremburg trials. Note that when those trials took place, we had signed no peace treaty with Germany, and we were in effective military control of all German territory not under Soviet authority. Churchill wanted Parliament to pass bills of attainder and execute the Nazis, De Gaulle wanted to trot out the firing squads, and Stalin wanted to execute the highest-ranking 100,000 Germans who had ever worn a swastika. But we said, “No, we have to have trials first,” and that’s what happened.

    Why did we do that? Did we do it because we liked the Nazis and respected them as worthy adversaries? Did we want to give the Nazis due process rights? Or did we do it because we believed we were somehow obligated to hold trials before killing them? If it was an obligation of some kind, from where did that obligation derive — and has anything happened to that obligation in the intervening 55 years that would make us act differently today?

    Whether we tolerate disregarding the limits on our government’s power put in place by the Constitution is the issue, at least that’s the issue the way I see it. (I don’t think that skepticism about the government’s exercise of power is a particularly “liberal” point of view, by the way.) We wouldn’t tolerate the government exceeding its powers when we had nooses ready for the Nazis, and we shouldn’t tolerate it doing so now that we have a poisoned needle ready for KSM.

    Down the path you seem to advocate I see a powerful, unitary Federal government, with few limits on its sovereign power and the bulk of that power concentrated in the Executive. (I realize that you do not see it that way.) For so long as wise men and women lead that government, we can hope that all will be well, should a charismatic tyrant come along, the institutional limits on that person’s abuse of power would not be there. Down the path I advocate I see a constrained, limited and principled Federal government, which answers to the free citizenry of the United States. That government may not be as effective or efficient at solving problems and adherence to its principles may lead sometimes to results that look and feel unpalatable, but such a government is, it seems to me, ultimately more desirable than the first vision.

  19. ST — there still must be a trial even when there is a confession. A confession generally is used as evidence of the defendant’s guilt and typically, it’s very compelling evidence.

    Only if the defendant pleads guilty can we bypass a trial. Maybe KSM will plead guilty, we don’t know whether he will or not, because he hasn’t even been arraigned yet.

  20. CB says:

    TL: I admire your persistence and can agree with entire paragraphs of your latest response. That said, I still discern in your analysis a tendency to conflate concepts in a way that inevitably leads to the wrong conclusions.

    First, while it may be appropriate to identify the American people as the “sovereign” to make a point about republicanism, in the present context, that observation is really misleading and beside the point. In the context of America’s actions before the world at large, the entity exercising the powers of the sovereign is the president.

    Second, for that reason, the Constitution doesn’t represent “the highest and most binding expression of the will of that sovereign.” At least vis-a-vis the rest of the world, the “will of the sovereign” is expressed, in legal terms, through treaties and the like, but more generally in whatever actions the president may decide to take on foreign soil in the name of the United States.

    Third, while it may be true in a colloquial sense that the collective citizenry of the U.S. “holds the government’s feet to the fire,” this isn’t really an exercise of America’s sovereignty. In asserting otherwise, you are conflating the concepts of national sovereignty that every country possesses with the rights of citizens in the U.S. to exercise their civil rights.

    Having said all that, I basically agree that it makes sense for the U.S. to exercise its sovereign powers in accordance with “international law” whenever that can be accomplished consistent with our interests and without implicitly relinquishing measures of our sovereignty. It serves no useful purpose for the U.S. to identify itself as a rogue state when our aims and interest for the most part are consistent with those of other states and would be appreciated as such. However, note that this is well off the central topic of our discussion, which is whether the Constitution imposes limits on how the government deals with alien combatants captured on foreign soil.

    Regarding Nuremburg, I don’t think it plays any larger role in this discussion than serve as an example of where the U.S. government, in its sovereign role, CHOSE to conduct itself in accordance with perceived international norms rather than brazenly act in a unilateral fashion. I’m not aware that any serious thought was given at the time or in retrospect that the U.S. government was actually required by its own Constitution to design and participate in those trials. While I have no doubt that our Constitution inspired the manner in which the Nuremburg defendants were treated, that doesn’t mean the Constitution required the U.S. government to act as it did.

    You state: “Whether we tolerate disregarding the limits on our government’s power put in place by the Constitution is the issue.” I disagree. The issue is whether the Constitution requires the U.S. government to extend to non-citizen enemy combatants captured on foreign soil substantially the same procedural protections enjoyed by U.S. citizens on American soil. And the answer is, it doesn’t. To arrive at that answer doesn’t involve “tolerating a disregard” for the limits the Constitution imposes on the government’s powers; it’s merely involves acknowledging that, when it comes to overseas enemy combatants, the Constitution imposes no such limits.

    The limits on America’s sovereign powers you seem to crave are not imposed by the Constitution per se, but through the political process the Constitution guarantees. More specifically, if the citizens of the U.S. don’t like the way the president treats overseas enemy combatants, they can vote him out of office and/or elect a Congress that will use its powers of the purse-strings to rein him in.

    Finally, your invocation of the specter of a “unitary executive” is all bark and no bite. The “unitary executive” is simply an observation that all of the executive powers of the federal government ultimately reside in the president. It would be a relevant concept to discuss in the context of a separation-of-powers debate, but I hardly see its relevance here, other than to make my seemingly uncontroversial observations seem somehow sinister.

  21. Re the post; Yes, I’ve seen this line of attack on any number of liberal websites. It’s remarkably silly.

    More, it misses the point of our objections, perhaps deliberately so. I think it’s a way of avoiding debate more than anything else.

  22. CB, I’m happy to leave you the last word and thank you for an interesting exchange.