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• Monday, January 12, 2009 08:11 PM

  Mona

  Why not attempt trial in a federal district court, and see if a conviction can stand notwithstanding the constitutional violations? There are myriad ways the constitutional infirmities could be found and a conviction yet upheld.

  I'm feeling pretty sure - especially after consulting several colleagues on this today - that KSM's case is strong enough that it might very well result in conviction in federal district court. But I was only bringing up a KSM dismissal as a worst case scenario. I'm not comfortable wit the idea of just wholesale transferring all the detainee cases into US court. I can think of almost endless ways that will unfairly compromise the prosecution, and provided unearned windfalls for defense, that might or will result in miscarriages of justice.

  Otherwise, release KSM and have CIA folks stay on him like white on rice.

  Here's where I depart slightly from Obama's stated concern. He says he doesn't want some of the Gitmo detainees to be released because "they might blow us up." I don't care about that. Lots of people want to blow us up all the time; we're always on tap for that.

  My concern is this: the prosecution, as well as the defendants, is entitled to a fair trial, under our rule of law. It's not fair to the prosecution to suddenly change all the rules on them, to their great disadvantage, 7 years into the process.

  This is a unique problem brought on by the unique and mind-boggling incompetence and malfeasance of the Bush administration. That's why an "easy" solution such as "just transfer them all to district court!" is unsatisfactory and why a compromise, third way such as the president-elect is actively considering is the one most in the interests of justice.

  —Jestaplero Read Jestaplero's other letters
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