Tuesday, November 24, 2009

Judge Dread: How the Judiciary Feels about KSM

Last night, several former classmates and I shared in a common ritual: dinner and drinks with a federal judge. Our judge is retired from the federal bench, but like many retired judges, he remains on a first-name basis with those in the legal and political world and therefore is in a position to offer career advice to young attorneys who are still trying to make a name for themselves. As such is the case, occasionally a group of us who used to work for the judge get together every now and again to take him out to show our appreciation for the many doors he has opened for us over the years. One of the best parts of this ritual: political conversation!

The conversation quickly turned to the topic of Khalid Sheikh Mohammed ("KSM") and whether the judge thought it was a good idea to try KSM in the federal court in NYC. He sighed a deep sigh and basically said he felt the whole thing is "a mess." It is a mess because the Bush Admin had a chance to sweep it under the rug in a military tribunal 5 or 6 years ago when they first indicted KSM and the 4 other men involved in the 9/11 attacks, but for whatever reason, the Bush Admin never followed through with the prosecution when they had the chance. So it got handed over to the Obama Admin. This sets up a dynamic where a new administration, which was elected by the people to specifically send a clear indictment against the policies of the former administration, is now faced with the same challenge: what to do with KSM. Clearly, this new administration can not follow in the footsteps of its predecessor, lest it fall victim to the same fate. But the people still demand justice. So what are you going to do? Another military tribunal that goes nowhere, or do you scratch that idea and take it to a federal court as America has always done for these type of terrorism cases in the first place? (see Ramzi Yousef; see also Zarcarias Moussaoui; see also Jose Padilla).

Another thing our judge mentioned as an issue to consider with the KSM trial in New York's Southern District Court is the life-protection that will be necessary for the lucky judge who is actually assigned to the case. Federal Judges who take these high-profile cases often have to be driven around by U.S. Marshalls for the rest of their lives. On the one hand, if you were a judge this would definitely suck; who would want to be troubled with that type of burden for the rest of their lives? This definitely provides an argument as to why this case should NOT be brought to the federal court in NYC. On the other hand, however, as our judge told us last night, when you sign up to become a judge or a prosecutor, this is a part of the job you have to accept. If the Judiciary dropped every case where a criminal defendant might harm a judge, there would be no more criminal cases.

Jeffrey Toobin recently wrote an article in The New Yorker addressing this very point:

The other day, [former Judge Pierre N. Leval] was wearing a mismatched checked shirt and striped tie, and he affected disdain for quotidian matters like his own safety. “Toward the end of the [Pizza Connection] trial, I stopped taking the subway and let the marshals drive me,” he said. “They kill judges all the time in Sicily, and I was counting on the idea of ‘When in Rome,’ you know?” Still, he does not underestimate the challenge posed by the 9/11 conspiracy case. (Among the smaller hindrances is that the main court building, at 40 Foley Square, the site of all the big local federal trials, from the Pizza Connection and Martha Stewart to the Rosenbergs, is in the midst of a renovation; K.S.M. will likely face justice in the newer Moynihan Courthouse, next door.)

Leval has confidence in the ability of the American judicial system to dispense justice even in a case as difficult as this one. “You have to be very careful in jury selection, ask the right questions, identify the jurors who will be fair,” he said. “Judges and juries can be protected. I don’t see any reason why the system can’t handle this case.”

Due to the safety concerns for the Judges and Prosecutor in NY's federal court, should the KSM trial be taken to a Military Tribunal?
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