Worst Democrat of the Day: Robert Gibbs

By Michael J.W. Stickings

Firedoglake's Cynthia Kouril explains it well:

White House press spokesman Robert Gibbs just said [yesterday on CNN] that Khalid Sheikh Mohammed (KSM) would likely be executed after trial and conviction. WTF?!?

Am I the only person left who still remembers a legal concept called presumption of innocence? Am I the only one who remembers that the whole point of a trial is that the outcome is not certain?

Listen Gibbs, do NOT insult the prosecutors who are about to work their asses off trying to put together a winning criminal case. Do NOT insult the hardworking defense counsel who are going to put thousands of hours into making sure that KSM gets due process. Do NOT insult the excellent federal judges of SDNY by suggesting that any one of them would preside over a kangaroo court. Do NOT insult our entire criminal justice system.

In a real trial, the outcome is not known before the trial occurs. Further, much of the information in the hands of the government which will be used at trial against KSM should currently be Grand Jury Material, subject to secrecy under Rule 6e. Which means that you, Robert Gibbs, cannot legally know exactly what that evidence might be.  So, how could you possibly know if KSM is going to be convicted? How do you know that?

You don't. So stop shooting you mouth off and calling our system of justice and the dedicated professionals of both bench and bar in the Southern District of New York into disrepute.

Yes. What she said.

(So shut up, Robert Gibbs. You're the president's press secretary. You should know better. Show some respect for the American legal system. And for justice.)

Are military commissions really much different?

Guest post by Michael Foote

Michael Foote is a deputy district attorney in Boulder, Colorado and a principal at the Truman National Security Project. This is his first guest post at The Reaction.

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Many critics of Attorney General Holder's decision to prosecute Khalid Sheikh Mohammed (KSM) and his fellow 9/11 conspirators in federal criminal court seem to believe military commissions would be an efficient and straightforward solution to all the weaknesses present in criminal courts. They promote military commissions as some kind of panacea that would disperse efficient and certain justice to KSM and other terrorists. When one actually understands the two systems, however, it becomes apparent that disparagement of the criminal system and praise for the military commissions both go too far.

In reality, the systems are similar in many ways. Try to figure out which system is described below:

A terrorist defendant is informed in open court of the charges against him, which include murder and conspiracy to commit murder. He is presumed to be innocent. The defendant hires a well known and effective defense attorney who in turn files numerous motions demanding information, suppressing statements, and to dismiss the charges. Some of the demanded information is classified so the judge denies those requests. Some of the defendant’s statements are in fact suppressed while some are admissible. After extensive pre-trial litigation, the trial finally begins. Twelve jurors are seated and they must determine whether the defendant is guilty beyond a reasonable doubt. The defendant is allowed to testify and takes advantage of the opportunity to justify his actions and defend al Qaeda ideology. If the defendant is convicted, he has the right to appeal his conviction in a federal appellate court and even ask the Supreme Court to hear an appeal.

If you guessed this scenario describes a federal criminal court, you are correct. If you guessed it is a military commission, you are also correct. That is because both have many of the same characteristics. In KSM's case, his trial in both would unfold in a very similar way.

How do we know this? Take a look at the military commissions rules of evidence and rules of procedure. Or, for a succinct summary, read a recent report comparing the two systems by the Congressional Research Service.

In both systems, KSM can hire the attorney of his choice. Statements he made about the 9/11 plot before his capture and in court proceedings afterwards would be admissible in both systems. When the death penalty or imprisonment over ten years is sought, all members of a twelve person military commission must agree on the verdict. The government must overcome KSM's presumption of innocence by proving its case beyond a reasonable doubt.

Both systems have protections against the disclosure of classified information. Neither system can force KSM to testify, but both allow him to do so. Both systems require an impartial judge to play the leading role in adjudicating disputes and making evidentiary rulings.

So, when Alabama Senator Jeffrey Sessions says, "different procedures are far more appropriate" in military commissions, it is difficult to know specifically which procedures he is referencing. When he says KSM's case in federal criminal court will result in "massive pre-trial motions," he does not mention the same is true in military commissions. In fact, there is even more room for pre-trial litigation in the military commissions because of the lack of precedent in that system. Defense lawyers in the commissions will attack everything from the constitutionality of the proceedings to the most minute procedural issue.

While former Vice President Dick Cheney laments KSM's ability to "proselytize millions of people out there around the world" during his trial in New York, he fails to explain how a military commission will curtail that opportunity.

When Minnesota Representative Michele Bachmann proclaims "we would have had 100 percent certainty in a military tribunal, but because of the provisions of reasonable doubt, that could turn into something like 80 percent," as she did in a recent protest on the steps of the Supreme Court, she apparently overlooks the fact that reasonable doubt is the standard in both systems.

All this is not to say KSM's trial in criminal court will be a short process immune from intrigue and legal maneuvers. But any court with the required due process provisions will present the same prospects. If the military commission system has the due process its advocates insist, any marginally competent lawyer will be able to fight conviction every step of the way. Trying KSM and other terrorists in either system will be a complex and time-consuming process. Military commissions will hardly shortcut that fact. The use of misleading and incomplete statements about the two systems should be seen for what it is: an attempt to score cheap political points without much regard for the truth.

What is behind all this hide and seek?

By Carol Gee

Waterboarding techniques were not what made 9/11 mastermind, Khalid Sheikh Mohammad confess. He had already started to talk before the "enhanced interrogation" started. And actually at one point, Dick Cheney ‘fessesd up' that rapport, not torture, got intelligence. Following the most recent revelations about Cheney's larger role in the Bush administration's s0-called "war on terror, he is no longer "fessing up" to anything. He is again hiding at an undisclosed location. His daughter, Liz seems to now be his official spokesperson.

Well before Cheney stopped talking this question for Cheney occurred to a blogger: "How come no attacks after the torture stopped?" Here is another question: Why did the CIA hide Dick Cheney’s role in briefing Congress? As it turns out, former Vice President Cheney's campaign to make sure that interrogations could continue as before, to keep lawmakers in line on torture, started midway in the Bush administration .

So, as we are now finding out, the Vice President, not the President, was apparently in the lead of the administration's efforts to run secret operations that were more often than not, outside of the rule of law. For example the May 10, 2005 Justice Department opinions on combined torture techniques were retrospective, designed to give legal cover to something that has already happened. The effect of a related NYT story that misrepresents James Comey's e-mails, claiming that he approved torture, amounted to a pre-emptive strike on the OPR Report that will come out at some point.

The Geneva Convention failed to assure that U.S. detainees received humane treatment. At an international conference in Italy a few weeks ago, Georgetown lawyers from the Center on National Security and the Law were planning to urge a new Geneva Convention for terrorism. Common article 3, they feel is too vague to guide the government of how to protect the security of the United States while also upholding our basic values about justice. UN Special Rapporteur, Philip Alston, last month called for for transparency and accountability as he presented his report on U.S. policies that have led to unlawful deaths and other abuses.

The case of tortured U.S. citizen, Naji Hamdan tested the Obama Administration on human rights. Did they stand silent, as the man who was himself tortured, went on trial in the UAE? With this and far too many other examples, the Obama administration finds itself "between a rock and a hard place." Rightly focusing on the economy, reforming health care, and tackling other issues is still front and center. Over and over again, to "put this behind us," the President or the Justice Department took the same legal position as the former administration. When it comes to how to come under the rule of law both in fact and in spirit they failed to step up and do the right thing immediately. Opting for secrecy, turning a blind eye, and assigning a low priority to accountability, are no longer working however.

Dragged kicking and screaming, Congress and the administration are being forced little by little to look back, in spite to their most commendable and forward looking policy changes and needed reforms. In some kind of magical way, the current Senate focus on confirmation hearings for Judge Sonia Sotomayor to the Supreme Court reminds us all once again that we are a nation of laws, not men. . . or (thank goodness) women. We will get back into balance with time, and because of how our founders set up the system. We must believe this.

(Cross-posted at South by Southwest.)