Thread: KSM 9/11 trial controversy

Originally Posted by zraver

This is incorrect, it does not mater how the information was gained, but wether or not he was abused.

It does matter how the information was obtained, which is why the government will not introduce any information obtained by "torture".

Evidence and/or confessions obtained through accepted interrogation methods can be used, and will be ruled admissable.

The defendant's attorneys can challenge how each piece of evidence was obtained, but if they try to make the argument that all evidence from day one is tainted because the defendant was subject to illegal interrogation somewhere along the line, it won't fly.

Judges often throw out evidence gained by illegal means, but as long as the remaining evidence was obtained legally, the trial goes on.

Originally Posted by highsea View Post
Obama said basically the same thing on NBC: "those offended by the trial will not find it offensive at all when he’s convicted and when the death penalty is applied to him.”

Obama, who seems to be sensitive to how the US is perceived abroad is taking for granted that the world knows our courts are fair, but if I were living in a country where the justice system is unfair, his words would sound to me like the trial is a fait accompli. Of course, he's saying that for a domestic audience that is jittery about this trial. Can't have it both ways, I guess.

JAD333:

No judgment was rendered; no double jeopardy, besides which a person can be tried a second time, such as in cases of a hung jury or if the charges are wholly different.

Can't jeopardy attach prior to judgement? Serious question. I paid attention when my Old Man would talk about his practice; thought I wanted to be an attorney for awhile. Unfortunately for my conversation in this forum he was an Interstate Commerce lawyer, & that had about as much relation to mundane reality as an MRE.

Prof

Originally Posted by JAD_333

It does matter how the information was obtained, which is why the government will not introduce any information obtained by "torture".

Evidence and/or confessions obtained through accepted interrogation methods can be used, and will be ruled admissable.

The defendant's attorneys can challenge how each piece of evidence was obtained, but if they try to make the argument that all evidence from day one is tainted because the defendant was subject to illegal interrogation somewhere along the line, it won't fly.

Judges often throw out evidence gained by illegal means, but as long as the remaining evidence was obtained legally, the trial goes on.

Nothing gained past the first violation of his person and rights is admissible. Since we have decided to try him in federal court and extend to him the rights therein there is nothing admissible since I assure you he was not told of his rights, allowed to seek counsel, remain silent (water boarding and all that). The Supreme Court has been very clear that the right to counsel kicks in as soon as adversarial proceedings start- Brewer v Williams 430 U.S. 387 (1977)

The Court defines adversarial as:

2. Respondent was deprived of his constitutional right to assistance of counsel. Pp. 397-401.

(a) The right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to a lawyer's help at or after the time that judicial proceedings have been initiated against him, and here there is no doubt that judicial proceedings had been initiated against respondent before the automobile trip started, since a warrant had been issued for his arrest, he had been arraigned, and had been committed to jail. Pp. 398-399.

(b) An individual against whom adversary proceedings have commenced has a right to legal representation when the government interrogates him, Massiah v. United States, 377 U.S. 201, and since here the police officer's "Christian burial speech" was tantamount to interrogation, respondent was entitled to the assistance of counsel at the time he made the incriminating statements. Pp. 399-401.

If KSM walks into a court he either walks out a freeman or its a show trial.

Then we have the two major fifth amendment violations (amendment wording in Italics)

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

Called the double jeopardy clause. The defining case precedent for my argument here is Ashe v. Swenson, 397 U.S. 436 (1970). ""Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U. S. 85. As Mr. Justice Holmes put the matter in that case,

"It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt."

KSM already had his day in court verses the Government. The pleas were entered and no facts remain to be determined. We had him- guilt and ready to be executed and now Holder is going to shred our constitution to either set him free or make a mockery of the rest of us.

nor shall be compelled in any criminal case to be a witness against himself

Water boarding some one 183 times is compulsion.

At no point was he ever treated as if this would go to court (Bush is an idiot) and so now there is nothing that is admissible and even if there was, he has already been tried and is protected by the double jeopardy clause.

Oof.

Prof

Originally Posted by JAD_333

It does matter how the information was obtained, which is why the government will not introduce any information obtained by "torture".

Evidence and/or confessions obtained through accepted interrogation methods can be used, and will be ruled admissable.

The defendant's attorneys can challenge how each piece of evidence was obtained, but if they try to make the argument that all evidence from day one is tainted because the defendant was subject to illegal interrogation somewhere along the line, it won't fly.

Judges often throw out evidence gained by illegal means, but as long as the remaining evidence was obtained legally, the trial goes on.

JAD,
Evidence that was obtained subsequent to and because of inadmissible evidence can be excluded. For example, he provides details of the 9/11 planning session while under duress which leads to the detention of corroborating witnesses, because the leads to these witnesses are tainted, so is their testimony and the judge can exclude their testimony unless it can be shown that that same information would have been obtained because of another sequence of events. That's why this case will become such a can of worms.

Originally Posted by Prof

JAD333:

No judgment was rendered; no double jeopardy, besides which a person can be tried a second time, such as in cases of a hung jury or if the charges are wholly different.

Can't jeopardy attach prior to judgement? Serious question. I paid attention when my Old Man would talk about his practice; thought I wanted to be an attorney for awhile. Unfortunately for my conversation in this forum he was an Interstate Commerce lawyer, & that had about as much relation to mundane reality as an MRE.

Prof

No, since the trial wasn't completed. Also, another common misperception is that a person can be tried twice for the same crime at two different levels of jurisdiction (e.g., state level and federal level).

Originally Posted by zraver

If KSM walks into a court he either walks out a freeman or its a show trial.

This is not true. NSA intercepts, analytical reports, AQ statements, etc., can all be used to build a case of both fact and circumstantial evidence. Guilt can still be assessed by a jury in the absence of any testimony by the defendant (the rejection of any testimonial evidence from KSM is akin to him taking the 5th). Besides, I wouldn't be surprised if he would want to testify and would openly admit his involvement, even after the judge instructed him on his rights and counseled him that any previous testimony couldn't be used.

KSM has already confessed to being not only the mastermind of the 9/11 attacks, but also to planning multiple additional attacks on Americans. He is already being held in the best possible security at Guantanamo Bay, and he has already been charged for his crimes in a military commission process where he faces the death penalty.

What possible benefit is there to bringing him into the United States for trial? There is absolutely none for the American people, but there is every benefit to KSM and al-Qaeda propagandists, who will use it as a platform to put the United States on trial and broadcast their propaganda and jihadist ideology to the world.

After the Fort Hood shootings, is this propaganda really what we need on television day after day after day to incite more violence?

Is this a politics show at the expense of taxpayers? Your thoughts?

Originally Posted by zraver

Nothing gained past the first violation of his person and rights is admissible. Since we have decided to try him in federal court and extend to him the rights therein there is nothing admissible since I assure you he was not told of his rights, allowed to seek counsel, remain silent (water boarding and all that). The Supreme Court has been very clear that the right to counsel kicks in as soon as adversarial proceedings start- Brewer v Williams 430 U.S. 387 (1977)

The Court defines adversarial as:

2. Respondent was deprived of his constitutional right to assistance of counsel. Pp. 397-401.

(a) The right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to a lawyer's help at or after the time that judicial proceedings have been initiated against him, and here there is no doubt that judicial proceedings had been initiated against respondent before the automobile trip started, since a warrant had been issued for his arrest, he had been arraigned, and had been committed to jail. Pp. 398-399.

(b) An individual against whom adversary proceedings have commenced has a right to legal representation when the government interrogates him, Massiah v. United States, 377 U.S. 201, and since here the police officer's "Christian burial speech" was tantamount to interrogation, respondent was entitled to the assistance of counsel at the time he made the incriminating statements. Pp. 399-401.

If KSM walks into a court he either walks out a freeman or its a show trial.

Then we have the two major fifth amendment violations (amendment wording in Italics)

nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;

Called the double jeopardy clause. The defining case precedent for my argument here is Ashe v. Swenson, 397 U.S. 436 (1970). ""Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that, when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. Although first developed in civil litigation, collateral estoppel has been an established rule of federal criminal law at least since this Court's decision more than 50 years ago in United States v. Oppenheimer, 242 U. S. 85. As Mr. Justice Holmes put the matter in that case,

"It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt."

KSM already had his day in court verses the Government. The pleas were entered and no facts remain to be determined. We had him- guilt and ready to be executed and now Holder is going to shred our constitution to either set him free or make a mockery of the rest of us.

nor shall be compelled in any criminal case to be a witness against himself

Water boarding some one 183 times is compulsion.

At no point was he ever treated as if this would go to court (Bush is an idiot) and so now there is nothing that is admissible and even if there was, he has already been tried and is protected by the double jeopardy clause.

Don't assume that the only evidence against KSM comes from him. There may be plenty of admissible evidence from other source, e.g., witnesses, intercepts, etc. In fact, AG Holder said as much.

There is absolutely no double jeopardy in this case. All that stuff you cited
is mumbo jumbo. The test is simple. Double jeopardy is retrying a person using the same charge and the SAME evidence as was used to convict or acquit the person in a previous trial. Besides which the defense would have to prove that the military commission that ostensibly tried him in the first place is a criminal court, which it is not. In other words he will be tried as a criminal this time, not as an enemy combatant.

But I sympathize with your basic point. This is going to be one hell of a mess. I wonder if I'll live long enough to see the end of the trial.

Originally Posted by Shek

JAD,
Evidence that was obtained subsequent to and because of inadmissible evidence can be excluded. For example, he provides details of the 9/11 planning session while under duress which leads to the detention of corroborating witnesses, because the leads to these witnesses are tainted, so is their testimony and the judge can exclude their testimony unless it can be shown that that same information would have been obtained because of another sequence of events. That's why this case will become such a can of worms.

Shek:

I agree.

I was referring to evidence obtained from the defendant PRIOR to...not after duress was applied. What we got freely yesterday is not necessarily tainted solely because what we got today was gotten under duress.

A can of worms is putting it mildly.

JAD333:

Wiki, and it lacks a reference, but...

Jeopardy attaches in a (criminal) [I]jury trial once the jury and alternates are impaneled and sworn in.

Prof

Originally Posted by Julie

Is this a politics show at the expense of taxpayers? Your thoughts?

Yes it is, but I dont see it as being any different than the Rosenburg trials in 1951 at the height of the Cold War

Those were military tribunals.

Prof