In the month after the U.S. government captured Khalid Sheik Mohammed and whisked him off to a secret prison, American interrogators waterboarded him 183 times. How many of those times, would you guess, was he advised that he had a right to remain silent? Or that he had the right to have an attorney present?
Thanks to the decision of Attorney General Eric Holder to try Mohammed — the self-proclaimed architect of the Sept. 11 attacks — in a U.S. federal court rather than in a military tribunal, this is no idle question.
In federal court, Mohammed (or KSM, as he's known to his enemies) is entitled to the full range of protections given to anybody in a U.S. courtroom. That sounds very civics-bookish and cool until you start thinking about it.
Did he get his Miranda warning about the right to an attorney or against self-incrimination? Did the intelligence agents who kicked in the door of his house in Pakistan have a proper warrant? Was it based on an informant's tip? If so, we'll need the guy's name and address please, to be turned over to KSM's lawyers, who solemnly swear it will be used only for purely legal purposes.
If there's no informant, was the search based on wiretapping? Where's the warrant for that? That computer picked up in his house — the one that had the attack plans for 9/11, including Internet chat sessions with the hijackers and letters from Osama bin Laden — was it properly tagged and bagged according to standard chain-of-custody rules? Because if it went not to a secure evidence room but, say, some CIA black-arts lab, how do we know those guys didn't tamper with it?
And forget about not just whatever KSM confessed to while being waterboarded, but any evidence found as a result of the confession, too. That's the fruit of the poisoned tree, as lawyers like to say, and no jury will be allowed to take a bite of it.
If you liked the endless haggling at the O.J. Simpson trial about how and where the cops found that bloody glove, you're going to love the trial of KSM and his four co-defendants. It will have practically nothing to do with 9/11 and practically everything to do with legally dotting I's and crossing T's.
In the U.S. legal system, punishing the guilty always takes a back seat to protecting the rights of the accused. Probably 90 percent of what goes on in criminal trials today has to do not with establishing factual guilt or innocence, but with admissibility of evidence — that is, suppressing defendants' smoking guns in order to penalize overzealous cops.
That works, more or less, when you're dealing with common criminals with limited ambitions. (Though, as the furor over the Simpson verdict showed, Americans tend to be more enamored of "let a hundred guilty men go free rather than convict one innocent man" in theory than in practice.)
But trying to impose tidy domestic rules of legal due process on an overseas war on terrorism is sheer madness. Do we really expect Marines in Afghanistan to get a warrant before they search a cave to see if bin Laden is hiding in it? Do we really expect CIA officers to be experts on the rules of evidence first and spies second?
American jurisprudence has always recognized that crimes committed by the enemy during wars require different handling. The four assassins who hung for killing President Lincoln were tried not in civilian courts but in military tribunals. When eight German spies were caught in the United States during World War II, Franklin Roosevelt's government convicted them in military courts, then executed six of them, with Supreme Court approval.
Military tribunals, properly conducted, are not kangaroo courts. The Nuremberg tribunals that heard cases against accused Nazi war criminals acquitted dozens of them. But the tribunals concentrate on fact-finding rather than protecting the rights of the accused. The statutes of the Nuremberg tribunals explicitly said that they wouldn't "be bound by technical rules of evidence." Some of the judges presiding over U.S. military courts trying Japanese war criminals in Tokyo weren't even lawyers — and the Supreme Court OK'd that, too.
Mystifyingly, President Obama's administration — in a complete reversal from what Candidate Obama said on the campaign trail last year — recognizes not only the legality but the utility of military tribunals.
"The 9/11 attacks were both an act of war and a violation of our federal criminal law," Holder testified to Congress last month. "And they could have been prosecuted in either federal courts or military commissions. Courts and commissions are both essential tools in our fight against terrorism."
So why try KSM in a civilian court? "As a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum," Holder said. And, he added, "failure is not an option."
Umm, better talk to O.J. about that.