Hot Pants and KSM: The Difference Between Good and Bad Prosecution
The recent revelations of Umar Farouk Abdulmutallab cooperating with authorities after he was read his Miranda rights was music to the ears of anyone who believes in our criminal justice system. Abdulmutallab is the would-be Christmas bomber who tried to bring a flight down over Detroit by detonating an explosive in his underpants. This, so far has been a case of beautifully executed pre-prosecution procedure. Immediately after being taken into custody, Hot Pants was interrogated for about 50 minutes until it was determined that the pain drugs he had been administered would interfere with credible information. One can only assume, unless the interrogators were completely incompetent, that this 50 minutes of questioning centered around any possible ticking time bomb scenario. Was he a one-off? Did he have partners planning to down other planes? News reports indicated that Umar was more than forthcoming in this initial round of questioning. My guess is after this first interrogation, a ticking time bomb scenario was deemed unlikely.
When the next round of interrogation began, Umar was read his Miranda rights and basically allowed to “lawyer up”, which he did. The cries of conservatives were heard across the land. A missed opportunity to get more intel. But guess what? Good prosecutors know how to get information and once they leveraged the influence of Umar’s family and possibly took a death sentence off the table, Hot Pants began spilling the beans yet again. Not a drop of water touched Umar’s head. No loud music. No sleep deprivation. Just good old-fashioned law enforcement work.
Unfortunately, this puts the case of Khalid Sheikh Mohammed (KSM) in sharp contrast and has forced me to revisit the arguments of conservatives and in particular my conservative readers. Back in November, I wrote about the KSM case and in my eagerness to discard eight years of Bush lawlessness I did not see the noose I was tying around my own neck.
- I can find no evidence despite a fairly exhaustive Google search that KSM was ever read his Miranda rights.
- KSM was not arrested in the United States nor was he arrested by foreign law enforcement and extradited here. He was captured in Pakistan as a POW.
- KSM was tortured on at least 183 occasions.
These facts alone make this a defense attorney’s wet dream. To top this off, we have assurances from everyone from Attorney General Eric Holder to the President himself that KSM will be convicted and executed. Now every prosecutor brags about how he will secure a conviction, but in this case “innocent until proven guilty” is nothing but a farce. How can we say that we are holding up our justice system as a beacon of light to the world and in the same sentence make the verdict and punishment a forgone conclusion? We might as well summarily execute him and save the time and money. (As a side note, NYC Mayor Michael Bloomberg’s about-face on this matter based on cost is incredibly lame. Justice has no price tag.)
Back last November when I was waving my American justice flag, David Feige of Slate painted an even bleaker picture of the KSM prosecution. He stated that no matter how righteous our intentions, there is not a judge or jury in this country, even at the appellate levels, who would allow KSM to go free, no matter how prejudicial the evidence against him. This has ramifications going far beyond KSM’s conviction. It sets dangerous precedent for many prosecutions down the line:
…there is no judge in the country who will seriously endanger the prosecution. Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals. And that’s where the ultimate effect of a vigorous defense of KSM gets really grim.
At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM’s years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.
Hence with the inevitably corrupt prosecution of KSM, we open the door to corruption down the line in other trials, and we ultimately justify all the short cuts and indiscretions of the Bush era that we had hoped to repudiate.
This puts us between a rock and a hard place. KSM cannot get a “fair” trial in our criminal justice system. Any conviction he receives in a military tribunal is subject to Supreme Court challenge and overturn. The final alternative is to hold KSM indefinitely as a POW and release him to his home country once we defeat them at the end of the war. Oh, but wait a minute. There is no country with which we are at war. We are at war with a criminal phenomenon that will always exist. The war has no end. And so it follows that KSM’s incarceration has no end.
This brings us back to the folly of the war on terror. It reinforces what I have maintained for months now — terrorism is a crime and should be treated as a criminal matter. The reason Hot Pants will be successfully prosecuted is that he was treated like a common criminal. That is the way to achieve justice in America.
For KSM, there may be no true justice and the survivors of the victims of his crimes may never get closure. This is the true legacy of the Bush/Cheney endless war.