(UPDATED) Obama pre-judges outcome of KSM trial in New York; Holder displays major chutzpah in his testimony today


Obama was asked today about the fact that most Americans believe Khalid Sheikh Mohammed should not be tried in federal court, but in a military tribunal (which has historical and legal precedents).

During a round of network television interviews conducted during Obama’s visit to China, the president was asked about those who find it offensive that Mohammed will receive all the rights normally accorded to U.S. citizens when they are charged with a crime.

“I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him,” Obama told NBC’s Chuck Todd.

He’s right about that, but as a Constitutional lawyer, Obama should know better than to pre-judge the outcome because of tainting the government’s case.

From Sweetness and Light blog, the point is made that the government’s case could be tainted already with such a judgement from President Obama, even though he tried to “walk it back”.

Given that Mr. Obama is a lawyer, and that he taught law, and that he claims to be a Constitutional scholar – for him to make such statements seems like he is intentionally trying to wreck the government’s case even before it begins.

Sure, Mr. Obama made a show of walking back his first remark. But any competent lawyer would argue that the damage has already been done.

Just imagine the uproar if a Republican had said anything like this about someone on trial.

Wait a minute. We don’t have to imagine.

Back in 1970 then President Nixon said a very similar thing about another mass murderer, Charles Manson. And he also issued a hasty “clarification.” But that still didn’t prevent the possibility of a mistrial.

Not only that, but Holder and Obama supposedly want everyone in the world  to see the “fairness” in the US legal system.  (Never mind that military trials are legal and used around the world)  But both of them are touting the inevitable outcome before the trial begins.  Not only that but they insinuate that if these terrorists are found “not guilty”, Holder will still detain them.  What message does that send to the rest of the world? 

Here’s Obama’s “walk back” on his prediction of guilt for KSM:

When Todd asked Obama if he was interfering in the trial process by declaring that Mohammed will be executed, Obama, a former constitutional law professor, insisted that he wasn’t trying to dictate the result.

What I said was, people will not be offended if that’s the outcome. I’m not pre-judging, I’m not going to be in that courtroom, that’s the job of prosecutors, the judge and the jury,” Obama said. “What I’m absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism.”

If you read nothing else today, read Andy McCarthy’s piece which tears apart many of the presumptions, assumptions, and words from Eric Holder today on this decision.

A sampling —  in bold are Holder’s words/assumptions:

3.  We can protect classified material because of the Classified Information Procedures Act (CIPA).  It is not just classified information that is helpful to terrorist organizations. The list of people who might be identified as unindicted coconspirators that I had to turn over in 1995 was not classified, but it told al-Qaeda who was on the government’s investigative radar screen. Moreover, CIPA does not shield all classified information from the terrorists — just the classified information the judge decides is neither discoverable under the rules nor relevant to the trial. If it is discoverable and/or relevant, the defense gets it. And in civilian court, the terrorists can demand to represent themselves (as I explained in this column), so the government can’t shield the classified information from them as it can in the military system (where it can require them to have military lawyers with security clearances in order to get access to the discovery).

……  Classified information procedures in the Military Commissions Act, which would apply at military commissions, are “based on” the CIPA that applies in civilian trials.  They may be “based on” the CIPA rules, but they are not the same as the CIPA rules. The MCA provisions (Sec. 949(j)(c)) expressly provide for (1) deletions of classified material from discovery documents made available to the accused; (2) the withholding of methods and sources of intelligence collection from the accused; and (3) the deletion of classified information from exculpatory evidence. It is true that, whether you’re in civilian or military court, the executive branch gets the opportunity to propose a substitution (e.g., an unclassified summary of the information) rather than surrender the classified information. But in civilian court under CIPA, the presumption is that if classified information is relevant under the rules of evidence, the accused gets access to it. In military court under the MCA, the presumption is that classified information gets withheld, especially if it involves methods and sources of intelligence.

For eight years justice has been delayed — no longer, “It is past time to finally act.” Holder, of course, does not mention the role of his firm and others in delaying and derailing the military commissions during their representation of America’s enemies. 

McCarthy had another column yesterday that addressed Holder’s hypocrisy and blatant “blame Bush” method of operation (my emphasis):

The principal reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals by challenging them in the courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & Burling, volunteered its services to at least 18 of America’s enemies in lawsuits they brought against the American people. (During 2007 alone, Covington contributed more than 3,000 hours of free, top-flight legal assistance to our enemy detainees.)

By the way, Rush made  a good point today that perhaps Holder should have recused himself from this decision on KSM entirely because Holder and his firm VOLUNTEERED their legal services to 18 of America’s enemies….good point. 

More from McCarthy (my emphasis):

Almost from the moment President Bush authorized military commissions in 2001, this legion of litigators flooded the courts with habeas corpus petitions, contending that military detention and trials violated the Constitution, the Uniform Code of Military Justice, and the Geneva Conventions.

In 2004, the al-Qaeda bar induced the Supreme Court, in Rasul v. Bush, to grant enemies a statutory habeas corpus right to challenge their military detention in civilian court. Congress tried to stop them by amending the habeas statute to divest the lower federal courts of jurisdiction in these lawsuits, but the al-Qaeda bar later persuaded the liberal bloc on the Court to ignore that amendment.

One side note:  Holder said today in his testimony that military justice was valid and that is why he is using it for other terrorists held (namely those who bombed the USS Cole).  So, why the change of heart?  Holder and his minions were pleading that military detention and trials were  a violation of the Constitution when Bush was in office, but now they are valid? 

Sounds a bit like the KSM trial is highly political and ideological which leads to a rather likely conclusion that KSM is being tried in New York in federal court  as pseudo-trial against the Bush administration and waterboarding.

More from McCarthy (my emphasis):

It is mind-boggling that the delay in completing commission trials would be derided by Eric Holder, a lawyer whose firm is among those responsible for the litigation-driven delay that became a lawfare triumph for al-Qaeda. Holder and his comrades did everything they could do to undermine the commission system, both in legal motions and in public appearances accusing the Bush administration of torture, war crimes, and disregard for the legal rights of terrorists.

 And exactly when would Holder have had Khalid Sheikh Mohammed be tried? We did not gain custody of him until his capture by the Pakstanis in 2003. After that, years were taken to break him in our attempt to extract the full breadth of his knowledge of al-Qaeda’s players and plans, and to exploit that intelligence to save lives. KSM was submitted to a military commission in 2006 — shortly after Holder’s colleagues in the al-Qaeda bar got the commission system invalidated in Hamdan.

UPDATE (11/18/09):  Holder did state today that he will find ways to continue detaining KSM and the other terrorists if they are found not guilty in the NY Federal Court circus trial.   So much for showing the world how fair we are, huh?  From Sister Toldjah:

“Under the regime we are contemplating … the ability to detain under laws of war, we would retain that ability,” Mr. Holder added, meaning anyone freed by the courts could simply be returned as an enemy combatant to indefinite military detention.

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