“The constitutional case of our time”

(“Because in the 221st year of America, the question is whether the Constitution applies to the government.” Great essay. – promoted by pfiore8)

The Los Angeles Times has an article about Khalid Shaikh Mohammed’s upcoming trial at Guantánamo Bay. In the article, “Defending KSM, ‘the most hated man in the world’, Josh Meyer writes about the lawyer who is assigned to be KSM’s lead defense lawyer – Capt. Prescott L. Prince, a Navy Reserve judge advocate general. The significance of this trial, I think, cannot be understated as Capt. Prince explains:

“I think it’s the constitutional case of our time,” Prince, 53, said in a recent interview in his office, U.S. and Navy flags front and center on his desk. “Because in the 221st year of America, the question is whether the Constitution applies to the government.“

Not only is KSM on trial at Guantánamo Bay, but also the question many of us have asked over the past seven years – do we still have a Constitution?

Capt. Prescott L. Prince

Capt. Prescott Prince expects the government’s case against Khalid Shaikh Mohammed will ultimately be argued before the U.S. Supreme Court and, I think, he understands what the Bush administration has been doing over the past seven plus years.

From the LA Times:

To him, it’s not only the welfare of his infamous client that matters, but also protecting the integrity of the Constitution, which he says the Bush administration has trampled by coercing information out of Mohammed and subjecting him to a system of military justice that is stacked against him.

Prince began his defense work for KSM in January 2008 after being appointed by the Department of Defense, however his representation is still in question as Khalid Shaikh Mohammed has not formally agreed to be defended by him.

In an April interview, Prince told Carol Rosenberg of the Miami Herald:

“This man is alleged to have done some very bad things. Personally I have faith in the American people to allow him to have a fair trial. I believe in the American justice system. Let him be tried, let him be tried fairly.”

I believe Khalid Shaikh Mohammed should receive our nation’s best defense and a fair trial. Personally, I have little doubt Khalid Shaikh Mohammed is a bad man who has plotted mass murder against Americans. He may have even murdered Daniel Pearl, the Wall Street Journal reporter as he claims to have done, but KSM is also one of three people the CIA has admitted to have waterboarded. We claim to be a nation of laws, but when people representing our nation torture can we still make that claim? Is the military commissions system even fair?

In a February 2008 article for Harpers, “The Great Guantánamo Puppet Theater, lawyer and journalist Scott Horton quotes Col. Morris Davis, former chief prosecutor for Guantánamo’s military commissions, recollection of an August 2005 discussion he had with Pentagon general counsel William Haynes.

“I said to him that if we come up short and there are some acquittals in our cases, it will at least validate the process,” Davis continued. “At which point, [Haynes’s] eyes got wide and he said, ‘Wait a minute, we can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals, we’ve got to have convictions.'”

According to the argument Horton makes in his article for Harpers, it appears the guilty verdict for KSM and others being tried by the military commissions at Guantánamo are predetermined. And in to the Miami Herald interview, Prince seems to agree with this assessment. Prince thinks the military commissions system is unfair and believes KSM should face a trial in a normal military or civilian court.

“You start with the fact that you’ve broken the rules — a secret prison, torturing. Waterboarding. Harsh extreme techniques. Using cruel, coercive techniques to extract information,” he said. “I just don’t see how you can give him a fair trial,” by military commissions.

Over three months later, Prince hasn’t changed his opinion and of Mohammed, according to the LA Times story:

“He believes his treatment has been illegal,” Prince said. “I believe it’s been illegal too. And I personally believe that he cannot, as a result of all these things, get a fair trial.”

The deck is being stacked against KSM and the Constitution, but hopefully, this “Southern lawyer who only a year ago was running a small civilian defense practice” (a brief biography [pdf]) is up to the challenge despite the barriers. “He said he soon began to feel badly outgunned by the big team of government lawyers and investigators that had for years been building the case against Mohammed.” In the Miami Herald interview, Prince described the KSM case the “biggest” of his career.

There are many obstacles in the way of KSM’s defense being placed by the goverment that Prince must overcome. Prince must share a paralegal with another defense lawyer. The civilian lawyers that are part of KSM’s defense team have not gotten their top-secret security clearances.

He said he had also been hamstrung by institutional obstacles, including evidentiary rules favorable to the prosecution that will probably allow the use of hearsay and confessions and other evidence obtained through coercion.

The Bush administration has had years to build a case against KSM, but Prince has been working on KSM’s case for less than six months. Prince explained in the Miami Herald interview when he took the case that he wouldn’t be “legally prepared for a long time.”

According to an interview Prince gave to CNN in April, he is concerned he may not be allowed to cross-examine those accusing KSM or see all the evidence. Add to that the likelihood that hearsay and confessions under “harsh interrogation” will be accepted as evidence, then how can the military commission system trials be considered fair?

Prince believes KSM’s waterboard interrogation is torture. “I take the position that this is mock execution. … Colloquially speaking, at least it’s torture,” Prince told CNN. And Prince explained in the LA Times story:

Prince also told Mohammed that he believed the military commission proceedings were inherently unfair and that he would try to get Mohammed’s confessions thrown out, along with other evidence reportedly obtained through coercive techniques.

This CIA admitted use “enhanced interrogation” may have affected KSM’s mind according to Prince, “who has a master’s degree in psychology as well as a law degree”. He thinks there are indications that KSM may have a mental disorder that “distorts his judgment”. Since he was tortured, was it the waterboarding that caused the disorder or it a preexisting condition?

That could explain why Mohammed has boasted about being behind so many terrorist plots, Prince said, including some in which U.S. intelligence officials believe he played no role. Prince said he planned to raise the issue at trial and to seek a psychological evaluation of Mohammed, including a neuropsychiatric exam, to see if the suspected impairment was a result of his incarceration.

I suspect, if the law still exists, the Bush administration’s approval and use of torture is going to make it impossible for the government to win a conviction against KSM. Prince told CNN he believes such a confession would not be admitted in a U.S. civilian court.

“Even the greenest deputy sheriff or rookie police officer in Skunk Hollow County knows that if you rough up a defendant, anything he says after that is not going to be admitted into court,” Prince said. “The officer might not like those rules, but he understands them and will abide by them.”

The Bush administration didn’t like the rules forbidding torture, so they circumvented them. So when KSM goes on trial. The choice may ultimately be between a guilty verdict or the Constitution.

KSM is scheduled to be arraigned on June 5.