In defending the Obama Administration's decision to try Khalid Sheikh Mohammed and four other Guantanamo Bay detainees in a civilian court, Senator Patrick Leahy said:
"By trying them in our federal courts, we demonstrate to the world that the most powerful nation on earth also trusts its judicial system -- a system respected around the world,"
Well, there are a number of things about that. First is that our world-respected judicial system requires that a defendant be considered innocent until proven guilty. But when speaking to Bob Schieffer, Leahy said:
I think it’s an example we’re showing the rest of the world. We have systems that work. We’re not afraid of these people. We’re ready to stand up to them. I don’t think we should run and hide and cower. Let’s use our system. And let’s convict them.
And he's not the only one. Both the Attorney General and the President believe the out come will be a conviction. So what does it say to the world when the people they hear have a presumption of guilt, not innocence? How does that reflect on our legal system.
And if there is a presumtion of innocence, might it not come about that one or more of these guys might be let go for one reason or another?
SCHIEFFER: What if he should be acquitted?
LEAHY: I don’t think he’s going to be acquitted. I’ve discussed the evidence that’s available. Again, I’ve not prosecuted this kind of a case, but I’ve prosecuted a lot of murder cases. I think most prosecutors know what is going to happen.
You have got Eric Holder, who is one of the most experienced prosecutors this country has ever had as attorney general. He’s got one of the greatest teams of prosecutors around him. I’ve gone over the case with him. I’d rather be the prosecutor than the defense counsel in this case.
And why is an aquittal or a mistrial so unlikely? Why it appears that the conviction rate of terrorism suspects in Federal courts is high (91%) it is not 100%. What's more, that 91% conviction rate was achieved when law-enforcement and prosecuters were intending to bring the case to court. That means that evidence was achieved by means of a search warrant; the suspect is read his or her Miranda Rights; evidenciary chain of custody was rigorously maintained. Do we have that wit, say KSM?
How could we? First, he was arrested in foreign country and the circumstances of his arrested are not even well understood. Some accounts have him arrested by Pakistani's. Others by a joint effort of Pakistani's and the CIA's Special Activities Division; or the Paks and the FBI; or the Paks and the US Diplomatic Security Service. Even when he was taken into custody is in doubt.
One thing is for sure, it was highly touted in numerous places that he asked for a lawyer and was denied.
How much evidence will be allowed into court given all this? What if none is allowed? And if the rules of evidence are abrogated for these cases, what will that tell the world about our much vaunted justice system? And what will it mean for everyone else? As James Taranto points out, if the rules of evidence are watered down for KSM et. al., will that not affect everyone else who is brought to trial?
Senator Leahy hand waves these concerns away.
SCHIEFFER: You know, anybody who has watched “Law and Order” or any of the other crime shows on television knows that the first thing that happens when a law enforcement arrests someone, they advise them of their rights, that they have a right to an attorney and so on. Now, there was no attorney here. This man was waterboarded 183 times. Do you think that we can find untainted evidence, enough of it, to convict him? Because if you say, well, he didn’t have a lawyer from the beginning, would that say to people, to a judge, well, you can’t use any of that evidence?
LEAHY: No, I think that we have plenty of evidence as obtained outside of the -- whatever he said in waterboarding. Keep in mind, they indicted him long before this waterboarding. They had evidence enough to bring indictments against him long before that. I don’t -- with the review that I’ve had of the evidence available, I have no question that they have enough evidence untainted by the waterboarding that will be admissible in court. And he will be convicted.
But the evidence required to gain an indictment are much lower than what it takes to convict, and execute, a defendant in a Capital case.
So let's just say that the case is thrown out of court for lack of evidence, or worse, he is acquitted because the jury could not agree on reasonable doubt, then what. Will the Obama Administration let him walk?
But if not, what will that say to the world about our judicial system?
And what would have been the point of the trial in the first place?