Should KSM Be Tried In New York City?

Should KSM Be Tried In a Federal Criminal Court in New York City? or How Can Legal Authorities Get the Constitution So Wrong?

On Friday, November 13, 2009, Attorney General Eric Holder announced that 1 Khalid Sheikh Mohammed (KSM) would be brought from 2 Gitmo to New York City to stand trial in a federal court for crimes.

Within a few days, outrage was expressed by citizens, politicians, legal analysts and pundits of all stripes. There are many reasons why Holder’s decision is both irrational and disrespectful of the law. He has no rational or legal standing in this decision. These issues are fully discussed by others. My purpose herein is to address the confusion over the constitutional issues created in statements by authorities like 3Judge Andrew Napolitano of Fox News.

Napolitano has stated that the 6th amendment to the Constitution guarantees KSM a trial in NYC. He has read into the 6th amendment the right to be tried in the region/community where the crime was committed. Lifted out of context and with a flawed perspective, it is understandable how he could see this provision; for, it reads

“. . . the accused shall enjoy the right to a . . . trial . . . wherein the crime shall have been committed . . .”

And this is exactly how Napolitano has read the 6th Amendment . . . ignoring the specific wording contained in the little “. . .’s” – the overlooked words. Redact a few words, change “wherein” to “where” and, voila! You have the judge’s point. The problem is that this approach does damage to the actual wording as well as to the obvious meaning.

Napolitano is wrong on 3 counts. But first, let’s be clear about what the 6th Amendment says. It’s very simple. Read it. That’s what I did.

Article VI.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed [or as modern journalism would have us say “wherein the crime may have allegedly been committed], which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have Assistance of Counsel for his defence.

It is a bit inconvenient to Napolitano’s case that, in the 6th Amendment, the venue of trial is more tied to jury selection than the “scene of the crime.” Only the jury members must be tied to the crime scene (i.e. the “district” in which the crime was committed). This does not address the trial venue. As I point out in the second reason, it’s a moot point anyway.

Let’s also be clear about the facts of the case. KSM was captured in Pakistan. That’s not a suburb of Detroit although Detroit might be considered a suburb of Pakistan. It’s another country on the other side of the globe. To make the proper distinction, he was not captured by police on American soil. Other terrorists have been captured in the USA. And they have been tried in American courts. But, not KSM.

And here are the 3 major reasons that Napolitano’s statement is wrong.

1) Napolitano is applying a protection to someone for whom it does not apply. The protections in the Constitution apply only to US Citizens, an undeclared war on terror notwithstanding but actually buttressing the case that non-uniformed combatants have forfeited even Geneva Convention protections not to mention those protections contemplated by our own Constitution exclusively for its own citizens.

This is such a simple matter but a widespread mistake usually made by liberals, not usually by the likes of Napolitano. The application of Constitutional protections to non-citizens is pulled out of thin air or shall we say out of one’s own arse. But, it gives liberals and soft-headed Americans a way to feel morally superior. Argue for whichever point you wish, one fact is indisputable – the Constitution itself does not grant its protections to every person in the world. The Declaration of Independence may declare the rights of “all men.” But a country’s Constitution purports to govern only its affairs and that of its citizens. To boot, our Constitution is unique in its “Bill of Rights” (containing the 6th Amendment) in that it protects the citizen from the intrusions of the federal government.

If the 6th Amendment applies to KSM, at least one of his rights has already been egregiously violated, that of a “speedy trial.” When critics of George W. Bush bemoan the length of stay in Gitmo without trial for KSM and a couple hundred others, most Americans are thinking “Good! Let’s keep them there for as long as it takes to extract useful information out of them. And by the way, you have my permission to water-board the hell out of these bastards if anyone thinks that intelligence may be obtained that could prevent another loss of American life.” There are many good reasons why the previous (and morally/intellectually superior) Bush administration did not rush these combatants to trial; two of which are 1) they didn’t have to and 2) they were getting useful information out of them. There was just no compelling reason for a rush order.

An illustration is helpful. Giving KSM Constitutional protections is like the following. Let’s say there is a large private corporation that has provided an appeals process for its employees who are fired. Let’s say that one of the stated causes for firing is improper and unwelcome sexual advances to another employee. Now, a person who lives in another state and is not employed by this company enters the premises and rapes an employee. He then escapes the premises. The employee notifies HR; together they notify local law enforcement and alert their internal security force. 2 hours later with critical help from the company’s highly trained and professional security personnel, local police apprehend and arrest the accused. While awaiting trial, the rapist declares that he wishes to access the appeals process in said company. He wishes to appeal his “firing” from a job he never had and, if successful wishes to be “reinstated” with all rights and privileges pertaining thereto. Mind you, he was never employed by the company. As ridiculous as it sounds, the head of HR grants his wish, sends his security guards to extract the rapist from jail, brings the accused before the appeals board and publicizes every detail of the case including the secret methods by which the company’s security force helped to track and capture the accused. As the case becomes a media firestorm, the result is that the company and its policies become the issue more than the rapist’s actions. In fact, dozens of irrelevant policies and procedures of the company are exposed to the public, not that they are that secretive to start with. The accused has essentially been given a pulpit from which he preaches hatred against the evils of greed and capitalism as personified by the corporation.

In no significant feature does the analogy break down except that as comparisons go the rapist (before the corporation’s appeals board) did not actually enter the premises and rape an employee, he helped 20 other men plan the attack while keeping his distance. The 20 rapists would be still held in jail, in our analogy, if not killed in a hail of gunfire in the attempted capture.

This is ridiculous to the point of being silly – Holder’s decision that is, not my analogy. In an environment where precedent (previous bad court judgments) often trump the Constitution for no apparent logical reason, the decision is not just poor administration of “justice” from the AG, it’s a dangerous precedent.

The “right” of the rapist to an appeals procedure within the company is simply non-existent.

2) The 6th amendment begins "in all criminal prosecutions . . ." Why do these lawyer types always want a judicial context for everything under the sun? KSM, terrorists and our "War on Terror" have NOTHING to do with a "criminal prosecution." It is a matter of victory over enemies NOT justice applied to the accused. In short, this is not a criminal prosecution. It’s a war. At most, it is a matter for a “war crimes” court. No doubt, some international criminal attorneys are salivating at the thoughts of such a trial. But, we have no compulsion to provide such a drama to the world in our own courts. In my opinion, we have no obligation to insert terrorists/combatants captured on foreign soil into an international war crimes court either. We can simply try them in our own, carefully defined and crafted military tribunals.

George W. Bush committed the same error as the Left in framing the conflict as a matter of justice. When President Bush stood on a heap of rubble and declared through his bull-horn that he would bring these bad guys to “justice,” I groaned. There it was again, a lawyer seeing everything in the context of a judicial process rather than as victory over an enemy. Our goal should not be to “bring them to justice” but to bring them to their knees and to their graves.

Let’s address the issue of War on Terror while we’re on the “criminal prosecutions” issue. I, along with a few others, am troubled that there has been no formal, Congressional declaration of war. In the mind of some, this has weakened our country’s legal authority to advance a response to 9/11. I wrote in my diary on 9/12 that our Congress should draft articles of war, albeit against a shadowy and elusive entity rather than against another country as traditionally articles of war have been applied. I still think it’s a good idea. But, it may have been unnecessary. And I will give the benefit of the doubt to GWB and his advisors. Here’s why. When a loosely-defined and elusive entity (like “terrorists” or “al Qaeda”) has already declared war against the United States and perpetrated actions thereof, to notify (through Articles of War) rather than respond militarily is legally unnecessary. Not to mention the weakness that it might display, it could restrict our response rather than release the fury of American might against evil. ‘Tis better to allow a good President the leeway to marshal bullets and bombs, craft and steel, ingenuity and intelligence against the vile vermin who hide behind ski-masks and 12 year old children. Besides the fact that these cowards do not deserve the effort it would take to draft articles, to whom would we serve notice anyway? Osama bin Laden? We can’t even determine the proper spelling of his name let alone get a forwarding address.

There are other elements about Holder’s decision and Napolitano’s analysis which do not bear up under logic. If it is true that the trial venue must match the “scene of the crime” then we must take KSM to Washington D.C. and a state just to the south of New York as well, having not tried him in NYC for the specific “crimes” committed in a Pennsylvania field and at the Pentagon. Of course, we could ignore the victims of the crimes in these other “districts” and “States.” We can tell their families that only the souls lost in the Twin Towers were the ones that were really important and emblematic of the attacks. As we so often do, we can prefer symbolism to the exacting blade of real justice.

Another disqualifying element in this argument is that, if indeed the “scene of the crime” is the only proper venue for trial, we must ascertain KSM’s location when he planned and conspired to execute the attacks. He is not charged with the physical perpetration of the attacks but with planning and conspiring to make such. If he planned and conspired (the crimes for which he will be charged) in a cabin in western Tennessee, should we not convene court in western Tennessee? This may be a fine point and a bit too picky one may think. However, it is no more picky than Holder and Napolitano have been in reading rights of foreign war combatants (“non-citizens”) into the Constitution.

3) I have not missed the point that even if there was a case that KSM be tried in NYC, it is not the same as being tried in our Federal courts with Constitutional protections granted the accused. Even if one conceded that the trial take place in NYC, the issue of what court hosts the trial is not addressed by this “venue” provision in the 6th Amendment. An international war crimes court could be conducted in NYC. A military tribunal could take place in NYC. For that matter, for a murder taking place in New York City, the state of New York has as much right to try him as the Federal government has, perhaps even more. Holder and Napolitano have insisted on both an unnecessary venue and an improper court. It’s really a sleight of hand – defending one action but conducting two. If Holder is fine with rubbing salt in wounds, go ahead and bring KSM to the Big Apple. But, try him before a military tribunal . . . in private . . . no press . . . no Miranda rights . . . no expensive defense . . . no grand-standing . . . no Judge Ito . . . no gloves that won’t fit . . . no jury of Muslim peers. Just a public hanging. It would meet one of the 6th Amendment requirements that Holder’s process will most surely not – speed. There’s nothing in our system as speedy as military justice.

You see, once you begin with foolishness and disdain, you cannot end up with reason and justice, or victory.

By personal observation, I do not see any disdain for the Constitution in Napolitano. I see the opposite – a great respect for it and a passion that it be learned and followed. But, that passion doesn’t automatically grant him a precise understanding of it. And he is certainly the scholar and authority on the subject, not me. But, I can read. And I have dictionaries so I can look up word meanings. If the principles of justice and law are too difficult for the common guy to understand, then they are too difficult to apply. And they shouldn’t be. But, they are not that difficult to understand.

On the other hand, I can surmise, without much appeal to speculation, that Holder has only selective respect for the Constitution at best. And he certainly has no regard for the context of the Constitution and the citizens it is designed to protect. However nefarious his motive, his application of legal principles is misguided and grossly uninformed – a mistake understandably granted to a simple Texas mortgage broker but not to the Attorney General of the United States or a highly respected Constitutional authority.


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1 Khalid Sheikh Mohammed – the accused and self-admitted “master-mind” of the attacks on September 11, 2001 against the United States in New York City, Washington D.C. and Pennsylvania.

2 Gitmo – the holding facility in Guantanamo Bay (Cuba) where enemy combatants caught in theater (“field of battle”) have been detained.

3 Judge Andrew Napolitano – Fox News Legal Analyst, Contributor, oft-times guest host of various shows and Co-Host of Fox Radio’s show “Brian and the Judge.” A delightful fellow.

On Leftist Christian Naïveté

On November 2, 2009, Sean Hannity entertained a caller who made the following observation and comment (paraphrased).

Are you a Christian (rhetorical; Sean Hannity states that he is a Christian)? The Bible says that the Christians had all things in common, each of them shared equally. None considered what he had as his own. If you’re a Christian, why do you not want this instituted in America?

This sentiment has been echoed in several of my conversations. Most recently, Neil Carter (ex friend, he defriended me on Facebook) and Presbyterian minister (holding several post graduate degrees including a doctorate from Princeton) stated his support for B.O. by enumerating the many examples of our responsibility to care for the needy, feed the hungry, clothe the naked and generally be a do-gooder. These were theological reasons for his Democrat vote in 2008.

Besides the lunacy of the caller’s assertion as well that B.O. had led us out of slavery into freedom and the Promised Land (and Sean was to be excoriated for grumbling against our own “Moses”), the premise of his question is naïve and false. The answer to it is simple, if one knows how to clarify issues (a lost art in America) and frame the question more sanely. In other words, it misses the real point of government’s role in our lives and precisely what is meant by “promoting the general welfare” in the Constitution.

Let's set aside the real demand that Sean's caller was making - that Sean share 100% of his earnings and wealth so that the caller could benefit. The selfish intention was clear and admitted. But, it has nothing to do with the philosophical argument set forth by naïve Christians.

I was slightly troubled but sympathetic with Sean’s retort. He basically defended himself by saying that the government already took 60% in taxes and that he gave an additional amount (not to be disclosed) by way of charity. I suspect that the amount is sizeable. Studies show that conservatives are considerably more charitable with their monies than liberals. As Sean hinted, I’m sure that if vanity were to get the better part of pride, his contributions would make Al Gore’s and Joe Biden’s pale in comparison.

I am not satisfied with Sean’s answer. I am thoroughly on his side in this debate and in his perspective, generally. But, the answer is too personal. And it doesn’t have to be. This issue is far too important for it to come down to a personal comparison of tax-paying and alms-giving. It’s far too important to be reduced to math, although math is telling.

If I may cut right to the chase and offer the only and perfect retort to this naïveté. The following question has rarely, if ever, been asked of these Convenient “Christians.” Convenient, because their lives and the remainder of their philosophy never seem to be guided by any sense of biblical reasoning; yet, they have adopted the time-honored practice of “proof-texting,” lifting portions of Scripture out of context in order to support a political view or opinion. [More on this in another setting; it is helpful to note that Jeremiah Wright used this method of hermeneutics in defending his “liberation theology.” Any student of the Bible and history noticed it right away when, in the 2008 campaign era, he quoted an Old Testament text and actually said that liberation theology was based upon this verse.]

Here’s the clarifying question: What directive did Jesus or His apostles ever give to the state?

Not even the Rev. Dr. Neil has been able to answer this question.

While the “Christian” Left scrambles for an answer and no doubt attempts to delegitimize the very question itself, please note that the question clarifies an all important issue - government, specifically civil government, is and should be limited in its scope of authority. Not just to the Christian but to every American. No religious believer would profess ultimate obedience to the state over God. But, that’s not even the issue. No American would either, religious or not. At least, no American who reads, understands and believes the Constitution and Declaration of Independence.

Sean did fair in his answers. But, the single Scripture that came to mind was Jesus’ statement that we must “render unto Caesar that which is Caesar and unto God that which is God’s.” This is very good but it doesn’t address the early Christians’ practice of having all things in common, a pattern the “Christian” Left sees for American government, minus of course any other “Christian” principles like respect for life (in the womb), honor to God in the public square as in all places, not being ashamed of Jesus Christ, et al.

While we’re on it though, let’s be clear about what Jesus said and what the implications are. Although the first part of the phrase is metaphorical in that it is certainly not limited to the Roman Emperor two millennia past, it hardly needs interpretation. Most folks understand intuitively that Jesus was speaking of “the state” when He said “Caesar.”

If Jesus was espousing a political philosophy, it certainly fell short of what many of us would have hoped to learn in our Western mode of thinking. We long for a treatise. We long for some treatment of the subject which we could dissect, critique, interpret in our own way and misinterpret and apply to our own advantage. Characteristic of Jesus, he used the least number of words to express timeless and eternal truth. And we need not over-explain or over-analyze it.
Just note, the statement is a limiting one. Caesar doesn’t get all. God probably does. But, even God allows a “rendering” of certain things unto human, earthly authorities.

The statement also begs the question whose answer is immediately, “no.” Is Caesar entitled to everything he demands? Yet, this goes entirely unnoticed by those who seek ultimate and total power for the state. The fact that God is entitled to certain things, even if not all things, is the corollary that doesn’t apply to the Leftist, Christian or not.

But Sean, this doesn’t directly answer your caller from Michigan who imagines that American domestic policy should fall along the same lines of early Christian practice. For it doesn’t address why we don’t lift words and practices out of context and apply them to a setting for which they were not intended.

Now, a fuller treatment of this naïve belief.

To apply early Christian practice, we shall just refer to it as “having all things in common,” as a matter of American domestic and tax policy is a violation of what actually happened as recorded in the book of (1) Acts.

This state of affairs was totally voluntary. It clearly emanated from some internal mechanism (I call it the Holy Spirit) and was not put upon them even by their own leaders within the church community let alone by authorities of the state. To be precise, we have no record of Jesus recommending this lifestyle either. Perhaps it was modeled in the traveling community around Jesus. But, that is unclear. We know that Judas kept a purse for the group but pilfered from it with apparently little concern from Jesus.

Of course, the point has nothing to do with whether or not the church community should follow this model. They may well should. The issue at hand is whether or not the state should force it upon the whole of society as a matter of policy.

Although I don’t care for most modern expressions of the Acts 4:32 idea, I do not, herein, argue against this type of Christian communal practice. There are plenty of groups that try it in one form or another. Many Christians do their best to adopt the spirit of such a practice through their giving to the local church and the practice of “alms-giving” or giving to the poor, especially their own who are in need. This happens in some of the most flawed Christian communities, even those with nearly incoherent mission statements. It’s just something they do. But, if a group of Christians were to practice this communal lifestyle, they could do it to a lesser degree precisely because the state has already taken up too much of their income in taxes. In other words, the state is actually the instrument that mitigates against such a heavenly and blissful condition. Unless the members run afoul of the I.R.S., it is impossible for them to share “everything” in common because the state will have taken either the first 15% and maybe up to 70% of the “everything” that they were supposed to have in common. Of course, if they are all poor, there may be no tax rate other than the 15% or so they must pay for social security. Perhaps the sharing of poverty amongst fellow believers is what the "Christian" Left has in mind.

By the way, we’re still waiting on an answer to my question, what directive did Jesus or His apostles ever prescribe for the state?

Are “Christian” Leftists actually saying that the practice of “having all things in common” should be taken away from the church community and given to the state? If not, how can both groups practice it? You cannot “have anything in common” more than once. So which is it? Does the Christian community practice this or does the state? If it’s the state’s responsibility, the argument falls quite flat doesn’t it – Christians are in effect prohibited from practicing it. And, if the state has the responsibility to insure some sort of “Christian” community, does it also have the responsibility to preach the Christian gospel? To discipline and correct its members for adultery? This may be the vision of America promulgated by some but certainly not by the Left.

Read Acts 4:32 again (below). It is not really clear how the details were worked out. We know that people did not claim ultimate ownership – no one claimed that “any of the things he possessed was his own.” This is consistent with the Judaic and Christian tradition of viewing everything as belonging to God and viewing ourselves as managers (“stewards”) of what we “possess.” Christians did, please note, “possess” certain things. The difference was that there was no “grasping” of possessions. This is what Buddhism had taught for 2,500 years but what appeared as if by magic in the Christian community without mandate. There is no indication that there was a common till. The sharing of all things was by attitude and mutual sharing, not by a Department of the Treasury or via the Ways and Means Committe.

Our world could certainly use an attitude of sharing and mutual concern. But, it’s an attitude that dynamic Christianity does not seek to impose upon society. It seeks first to introduce human beings to the reality of (2) “Christ in you, the hope of glory.” The implications and natural consequences that follow cannot help but spread a charitable environment throughout society.

But, the surest way to insure that such a spirit does not spread throughout, is to place upon the state the responsibility to produce that which it cannot. Historically, it's also the surest way to waste 66% or more of the resources within the redistributive hierarchy, hardly what happened in early Christianity. "All things" does not mean "all things less the bureacratic deduction."

One parting thought. If it’s a Christian’s obligation to support the state in its pursuit of this vision of communal sharing, is it also a Christian’s duty to support the state’s pursuit of other community practices such as Paul’s admonition, “For even when we were with you, we commanded you this: If anyone will not work, neither shall he eat.” (2 Thess. 3:10) No provision for the unfortunate condition of having lost one’s job. It’s pretty straight up – You don’t work, you don’t eat. Now, this one I like. We get to watch the lazy bastards on the welfare dole starve to death. Excellent!

I knew that Right-Wing Republican Christians enjoyed seeing people go hungry and actually wanted them to starve to death. This we know from the current White House and Congress. I just didn’t imagine that the sympathetic Left would support this notion. I suppose we have more in common than we thought.


Notes

(1) Now the multitude of those who believed were of one heart and one soul; neither did anyone say that any of the things he possessed was his own, but they had all things in common. (Acts 4:32)

(2) To them God willed to make known what are the riches of the glory of this mystery among the Gentiles: which is Christ in you, the hope of glory. (Colossians 1:27)