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A Ninth Reason Why KSM Will Be Tried By Military Commission


(For the first eight reasons, go here.)

9. The administration’s bungling has ensured that KSM can’t get a fair civilian trial.

The White House and Justice Department are making it easy for KSM’s lawyers to do their jobs.

In a typical criminal case, the government says very little outside of court, and what it does say to the public is limited to a plain-vanilla recitation of the allegations and liberal use of the word “alleged” before the charges, as well as a reminder that everyone is innocent until proven guilty. This is for good reason: A defendant has a right to a fair trial, and pre-trial publicity that is unduly prejudicial will deny the defendant that right.

It’s hard to imagine a trial that has had more prejudicial pre-trial publicity than the one planned for KSM. His lawyer will demand that the case be dismissed because it is impossible for him to receive a fair trial. It will be quite a challenge to argue the opposite.

Let’s see. Attorney General Holder, the nation’s top law-enforcement officer, has said KSM is guilty and should die. Check. The president has said more or less the same. Check. The entire political leadership of New York has announced that they cannot support trying him in New York City because of the disruption to the city and the sheer danger of holding KSM in downtown Manhattan. Check. The chair of the Senate Intelligence Committee, California Democrat Dianne Feinstein, has disclosed that the threat environment is such that trying KSM in New York City is just too dangerous. Check. The president’s chief spokesperson has said that no matter where KSM is tried, he “is going to meet his maker.” Check.

It’s difficult to imagine anyplace in the United States that would not be prejudiced by these types of statements.

The Obama administration cannot afford even the remote possibility that a federal judge will rule that KSM cannot receive a fair trial. Indeed, one suspects that the administration’s most recent guarantee of KSM’s execution, made by senior advisers on the Sunday talk shows, is a hint they are no longer concerned about pre-trial publicity because the decision to send the matter back to a military commission has already been made.

To be sure, there are similar concerns in a military commission — but those are limited to “undue command influence” in which superior officers in the chain of command make statements that suggest they have a preferred outcome. Only the president as commander in chief — not the attorney general, New York politicians, members of Congress, or the president’s senior civilian advisers — is in the chain of command for a military commission. And the president, at least, has tried in fits and spurts to use the word “alleged” when talking about KSM.

In any event, the Obama administration runs a much higher risk that a federal judge, rather than a military judge, will throw out the charges against KSM because he cannot receive a fair trial. This is a risk they will not run.

– Dana M. Perino is former press secretary to Pres. George W. Bush. Bill Burck is a former federal prosecutor and deputy counsel to President Bush.


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