Thursday, Nov. 19, 2009, at 12:51 PM ET
The Real Price of Trying KSM
Defense lawyers will inevitably create bad law.
By David Feige
Sometime in the next few months, a small group of experienced criminal-defense lawyers will be assigned to what is likely to be the case of a lifetime: the defense of admitted 9/11 mastermind Khalid Sheikh Mohammed, or, to those enamored of sinister acronyms, KSM. Their work will not be easy, obviously. No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. So what's a team of hardworking criminal defense attorneys to do?
Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients.
The defense in KSM's case has two major weapons: persuasive evidence of torture that should result in the suppression of a great deal of evidence and use of the discovery process to uncover facts that embarrass or discomfit the government. These tactics work—if the government will come to the table to work out a deal. Take, for example, the prosecution of the "American Taliban" John Walker Lindh, currently serving the eighth year of his 20-year sentence. Lindh was captured by the Northern Alliance in Afghanistan in 2001 and charged in the eastern district of Virginia in 2002 with conspiracy to provide material support to a terrorist organization. At the center of his case was a confession he made to interrogators from the FBI and U.S. Marines. Lindh's defense team turned up evidence to support the claim that Lindh was duct-taped to a stretcher, placed in a metal shipping container, and, with a bullet still inside him, interrogated without a lawyer, despite a warning from a Justice Department ethics adviser that such a move was unethical. The defense lawyers obtained graphic photos of an emaciated Lindh as well as confidential and internal Justice Department e-mails that seriously undermined Attorney General John Ashcroft's public statements about the legitimacy of the interrogation. All of which led the government to make an offer: Instead of the three life sentences he was facing, Mr. Lindh could have 20 years, as long as he abided by a gag order and dropped all claims of torture and mistreatment against the government.
This time, however, the government isn't going to make an offer to KSM, and even if prosecutors did, it is hard to imagine that a zealot like him would prefer to plead guilty than take advantage of the forum a trial affords. Thus the defense's tools won't work. Which brings us to the making of bad law.
Good criminal defense attorneys are seldom deterred by futility, so it's reasonable to expect that KSM's lawyers will make all the arguments there are to make: They'll allege a violation of KSM's right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They'll seek suppression of KSM's statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree. They will demand the names of operatives and interrogators, using KSM's right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret—the identities of confidential informants, the locations of secret safe houses, the names of other inmates and detainees who provided information about him, and a thousand other clever things that should make the government squirm. The defense will attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods. They'll move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.
All of these motions and three dozen more will be either denied or denuded of any significant impact on the disposition of the case. The speedy-trial argument will fail. Important documents will be scrubbed and redacted to the point of unintelligibility or will be ruled irrelevant. The motions to dismiss will all be denied. And though some of KSM's statements will be suppressed in order to preserve the appearance of impartiality and integrity, plenty of the most damming ones will remain admissible. While condemning in stern language the terrible treatment of KSM and denouncing water-boarding as beneath the high standards of our justice system, the trial judge will nonetheless admit into evidence statements made by KSM in subsequent military tribunals, along with those made to a so-called "clean team" of interrogators, rendering all the suppressed evidence utterly insignificant.
In an idealized view, our judicial system is insulated from the ribald passions of politics. In reality, those passions suffuse the criminal justice system, and no matter how compelling the case for suppressing evidence that would actually effect the trial might be, given the politics at play, there is no judge in the country who will seriously endanger the prosecution. Instead, with the defense motions duly denied, the case will proceed to trial, and then (as no jury in the country is going to acquit KSM) to conviction and a series of appeals. And that's where the ultimate effect of a vigorous defense of KSM gets really grim.
At each stage of the appellate process, a higher court will countenance the cowardly decisions made by the trial judge, ennobling them with the unfortunate force of precedent. The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute.
In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.
David Feige, a former public defender, is the author of Indefensible and the creator of the TNT series Raising the Bar.