The worst aspect of the upcoming Khalid Sheikh Muhammed trial isn’t the foolishness about Miranda warnings. The deeper problem with trying KSM is the question of what happens if he is acquitted. If he is acquitted, will he be released? If so, then they are insane. The man was the mastermind of 9/11; he can’t be released. (Furthermore, every future atrocity perpetrated by KSM would become the personal responsibility of President Obama and AG Holder, so a purely political calculation indicates that he can’t be released.) But if not, the whole trial is a sham. Rather than upholding the rule of law, the trial is a mockery of it.
And it’s no use to argue that the evidence against KSM is so strong that he wouldn’t be acquitted. Holder makes precisely that argument in this video, although he makes it in regards to Bin Laden rather than KSM. Firstly, you never know what will happen in a court of law. (Remember OJ Simpson.) Secondly, even if it were true, the certainty of conviction not only fails to address the matter of principle, it aggravates it. Holder is saying that civilian trials for terrorists are okay because they will certainly result in conviction. In other words, we will hold show trials in civilian court, all in the name of upholding the rule of law!
UPDATE: Eric Posner seems to agree broadly that this is a show trial, but he sees it as a positive rather than a negative. He suggests that we are creating a two-tiered system: civilian trials for strong cases and military trials for weak cases. Doing so, Posner says, will improve the system’s credibility, since we won’t be using “low-quality” trials for everyone.
This makes no sense to me at all. How is holding a few “high-quality” trials going to do anything to improve credibility for the rest? If a “low-quality” trial lacks credibility, how is it going to gain credibility from a “high-quality” trial for someone else? All it proves is at least some of the accused terrorists are guilty, and, frankly, anyone who would otherwise think that not one of them is guilty isn’t going to believe the “high-quality” trials either.
Plus, whatever minute credibility might be obtained by holding a few “high-quality” trials will be forfeit the first time a terrorist is acquitted but not released.
UPDATE: Krauthammer makes much the same point.