Q&A-15: Next Year’s Trial of KSM and the Speedy-Trial Right

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johnkarls
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Q&A-15: Next Year’s Trial of KSM and the Speedy-Trial Right

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Q&A-15 of the Suggested Answers to the Short Quiz (posted on http://www.ReadingLiberally-SaltLake.org in the Participant-Comments Section for our 6/7/2017 meeting) had said --

Question 15

What should be done with, for example, KSM who still resides at Guantanamo?

Answer 15

What do you think??? Let’s discuss!!!

BTW, in our discussion we should take into account the 2013 article in Vol. 88 New York University Law Review pp. 801-877 by The Hon. Karen Nelson Moore, Judge, U.S. Court of Appeals for the Sixth Circuit entitled “Madison Lecture: Aliens and the Constitution” which (pp. 833-834) with the help of zillions of citations contained in 4 footnotes, concludes that (1) the U.S. Supreme Court has never addressed the question of whether the Constitutional (Art. VI) right to a “speedy trial” applies to aliens, (2) the Circuit Courts have shunned answering it, and (3) only a handful (at most) of Federal District Courts have done so. The only District Court case she cites involved a considerable delay before the Defendant was brought to the U.S. and the Court held that “speedy” is only measured from the time the Defendant is first brought to the U.S.

However, a trial court decision is hardly dispositive.

Moreover, the only reason why KSM (who was captured 3/1/2003 in Pakistan by the CIA and imprisoned at Guantanamo at least from January 2006) has not been brought to the U.S. so that the “speedy” measurement would commence, is that the U.S. Government itself has held him outside the U.S. since 3/1/2003. Which was NOT true in the Federal District Court case that held that “speedy” is only measured from the time the Defendant is first brought to the U.S.

So everyone should be prepared to answer at least the threshold Q of whether KSM should be released.

And to answer the ultimate “law school style” question which has been posed by Yours Truly vis-à-vis our “drone” discussions over the years – “What’s to prevent us from dropping KSM off in a deserted area of Afghanistan (from which, after all, KSM’s 9/11 attacks originated) and then immediately zap him with a drone strike???”


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After 8 years of Obama-Administration inaction in prosecuting KSM, the Trump Administration is preparing to prosecute KSM by Military Tribunal per the following 1/25/2017 Miami Herald article.

Accordingly, we can expect that any conviction will wind up at the U.S. Supreme Court on the issue of whether an alien enjoys the Right to a Speedy Trial under Art. VI of the U.S. Constitution.

It should be noted that any delays during the Bush Administration are the fault of the U.S. Supreme Court itself --

On 11/7/2005, the U.S. Supreme Court announced that it would decide in Hamden v. Rumsfeld whether aliens could be prosecuted by Military Tribunal (as had been done since the American Revolutionary War). On 6/29/2006, the U.S. Supreme Court ruled 5-3 that the Bush Administration did not have authority to set up these particular military commissions WITHOUT CONGRESSIONAL AUTHORIZATION because they did not comply with the Uniform Code of Military Justice and the 1949 Geneva Convention. The Bush Administration immediately sought to satisfy the U.S. Supreme Court’s requirements by seeking enactment of the Military Commissions Act of 2006 which was signed into law 10/17/2006.

[Salim Ahmed Hamden, a citizen of Yemen, was captured during the invasion of Afghanistan following 9/11/2001 and sent in 2002 to the then-new detention facility at Guantanamo Bay. In July 2004, he was charged with conspiracy to commit terrorism to be prosecuted by Military Tribunal. His defense team, led by Navy JAG Lieutenant Commander Charles Swift, immediately instituted a lawsuit in Federal District Court for a U.S. Constitutional Writ of Habeas Corpus. This lawsuit went to the U.S. Supreme Court on the issue of whether an enemy combatant outside the U.S. was entitled to the Constitutional Right of a Writ of Habeas Corpus and in 2004 the U.S. Supreme Court ruled in favor of Mr. Hamden. Thereupon the U.S. Government attempted to proceed with the Military Tribunal and Mr. Hamden's legal team immediately filed in Federal District Court for a Writ of Habeas Corpus on the grounds that the Military Tribunal itself was illegal. It was this second Hamden v. Rumsfeld lawsuit that was decided by the U.S. Supreme Court on 6/29/2006.]

Following the 10/17/2006 enactment of the Military Commissions Act required by the U.S. Supreme Court, the Bush Administration then proceeded to resume prosecutions of Guantanamo detainees by Military Tribunal, but it only had 2 years remaining in its second term to prosecute all of them.


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From military.com/daily-news/2017/01/25/guantanamo-prosecutor-wants-start-911-trial-march-2018.html --

Miami Herald – 1/25/2017

Guantanamo Prosecutor Wants to Start 9/11 Trial in March 2018
By Carol Rosenberg

GUANTANAMO BAY NAVAL BASE, Cuba -- The chief war crimes prosecutor is proposing to start jury selection in the Sept. 11 terror trial in March 2018, a date defense lawyers said Tuesday was too soon.

"I think they are hopelessly optimistic in putting out that date," said Jay Connell, defense attorney for defendant Ammar al Baluchi, the nephew of the alleged mastermind, Khalid Sheikh Mohammed. He and other defense attorneys said Tuesday that the prosecution and judge have not given them the bulk of the national security information they need to prepare for trial.

Army Brig. Gen. Mark Martins told reporters Monday night that he has filed the proposed timetable with the court to start picking the U.S. military officers as jurors in the tribunal of Mohammed and four alleged conspirators. Once chosen, he said, he expects it will take the prosecution six to eight weeks to present its case.

The timetable filing was still being reviewed by security officials, and unavailable to the public. But Connell said that perhaps Martins proposed it to "justify the military commission process to the new administration."

Five men are accused of conspiring in the Sept. 11, 2001, attacks that killed nearly 3,000 people in New York, at the Pentagon and in a Pennsylvania field. They were formally charged May 5, 2012, but progress has been slow as lawyers and the judge navigate national security issues for men who were disappeared for three and four years into the CIA's secret prison network, the black sites.

Martins' counterpart, chief defense counsel Marine Brig. Gen. John Baker likewise called the timetable "unrealistic." Baker, who is responsible for getting resources for his defense teams, has been seeking more staff, including five additional death penalty lawyers to prepare for trial.

But it was unclear whether the Office of Military Commissions would be allowed to fill approved positions in light of an executive order President Donald Trump signed Monday freezing hiring people for non-national security jobs.

The need for a second death penalty defense counsel on each of the cases was brought into sharp relief this week after one of them broke her arm, requiring surgery, and was unable to make the trip from Washington, D.C. The first war court hearings of the Trump administration open Wednesday with the judge deciding whether one of the accused, Walid bin Attash, can voluntarily agree to go forward with this week's hearings without his so-called learned counsel, Cheryl Bormann.

News of the proposed timetable also comes days after the trial judge Army Col. James L. Pohl wrote a blistering decision -- also still under seal at the war court -- about lack of logistical preparation at Guantanamo for a trial involving what Obama administration officials called "the crime of the century," according to those who read it.

At issue in that instance was an as-yet unexplained decision at this remote Navy base in Cuba to cancel all 2017 reservations for temporary base housing for visiting war court staff, including at the officers' quarters where the judge and his staff have been housed for years.

Some war court visitors, including Gens. Martins and Baker, stay in a trailer park at Camp Justice that is not controlled by the base. But some officers and civilians expected to argue in court have traditionally been able to book into hotel-style base housing.

Attorney Jim Harrington, defending Yemeni Ramzi bin al Shibh, an alleged Sept. 11 plot deputy, called a March 2018 start date "not conceivable." Rather, he said, "I think 2020 is a more realistic year to start."

"We haven't even begun to scratch the surface yet on receiving classified information," Harrington added. Once the prosecution and judge turn over the evidence they believe the defense attorneys should get, defense teams would then turn in earnest to translation, investigation and requests for additional evidence, he said.

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