by Michael Webster
NWS Columnist

The Obama administration Friday decided to transfer five of the Guantánamo detainees, ...

    ... including the self-confessed mastermind Khalid Sheikh Mohammed, to the US mainland for trail. 

The decision apparently is part of Barack Obama's promise to close Guantánamo Bay by January 2010; with the 200-plus detainees either tried or released a timetable that he is now unlikely to meet. Many of the cases are still under review. 

The New York trial in federal court in the southern district will see the appearance of Mohammed, Walid Bin Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali and Mustafa Ahmed Adam al-Hawsawi, all charged with conspiracy to carry out the 9/11 attacks.
It will be one of the trials of the century, the suspected plotters of the 9/11 attacks in a civilian court only half a mile from the scene of the crime, Ground Zero.

I love this country, I consider myself a true patriot. But I do think America’s so called juridical justice system stinks. The only justice one gets in America is the justice one can afford.

As far as the monster terrorists are concerned I want those bastards to burn in hell, but not at the expense of our constitution and our own Bill of Rights.

What concerns me about the terrorist being tried in our court system is it will defy many of the very important things that Americans are suppose to stand for and will tarnish the constitution and much of what it stands for.

For President Obama and Attorney General to say that the terrorist will receive a fair trail is not very realistic.

The U.S. Constitution guarantees all Americans and others (yes, even terrorist) certain rights in the form of the “Bill of Rights.

Many of those rights have been gradually eroded since our founding fathers wrote them and by trying the terrorist in Federal Court will only erode them further.

One of the cornerstones of what separates the free world from the rest of the world is our rights under the constitution. Those constitutional rights guarantees a fair trail for all Americans and the terrorist, which means they must be afforded an attorney to represent them, be able to confront their accusers, present evidence on their own behalf, present witnesses and items of physical evidence, and use subpoena power to subpoena witnesses, records and other documents and to force witnesses to appear. Further during trail cross-examine the witnesses. Be allowed to object to testimony or exhibits on the basis of the rules of evidence, and the judge will then decide whether the material in question may be presented to the jury. They must be able to see all the charges and evidence against them, have a speedy trail and have an unbiased jury of their peers.

If that is true than how can the terrorist have a fair trail? If they don’t have a fair trail than it will create a mockery our great constitution and will do more damage to America’s image around the world and will weaken the constitution even more and likely harm Americans trying to get a fair trail in the future. If the President and the Attorney General are so sure they will get a conviction against the terrorist than the fix must be in.

Right out of the shut will be jury selection. Jury selection is likely to be another deeply complex issue. According to the jurors' handbook for the southern district, potential jurors should be asked whether they "have any personal interest in the case, or know of any reason why they cannot render an impartial verdict".

Other questions are designed to determine "whether any panel members have a prejudice or a feeling that might influence them in rendering a verdict". The right of jury selection is designed to work to find an unbiased jury. Where in the United states will they be able to find an unbiased jury much less in New York City where the horrible attacks took place.

In law, the act or process of questioning prospective jurors is called Voir dire and consists of oral questions asked of prospective jurors by the judge, the parties, or the attorneys, or some combination thereof. It is used to determine whether prospective jurors are qualified and suitable to serve on a jury. The purpose of voir dire is not to educate jurors but to enable the parties to select an impartial panel. Therefore, voir dire questions should test the capacity and competency of the jurors without intentionally or unintentionally planting prejudicial matter in their minds. Trial judges have wide latitude in setting the parameters of questioning, including the abilities to determine the materiality and propriety of the questions and to set the time allowed for voir dire. 

A prospective juror must answer questions fully and truthfully. The questions are designed to weed out any bias or preconceived notions of guilt or innocence on the part of any prospective juror and determine whether a potential juror is biased, has any knowledge of the case, has heard about the case through the media, knows any of the parties, counsel, or witnesses, and if so should otherwise be excluded from jury. Voir dire is a tool used to achieve the constitutional right to an impartial jury.

Attorneys may dismiss a juror for cause, such as when bias or preconceived notions of guilt or innocence are in evidence; but have a limited number of peremptory challenges that they can use to dismiss a juror for any or no reason. Which means when they run out of challenges, persons selected may very well have bias and preconceived notions of guilt or innocence. In all of New York City is there anyone much less twelve jurors of the terrorist peers that are not bias and/or have preconceived notions of guilt or innocence. I think not, so where is the guaranteed of a fair trail in all this? 

A Jury of your Peers 

A jury of your peers means anyone in your peer group. Back when this was created it meant that if you were a farmer your jury would be filled with farmers. If you were a peasant, your jury would be full of peasants. Considering the demographics of the population where these terrorist defendants lived, what kind of people would constitute a jury of their peers?

Your peers can also mean people of your skin color, religion etc. such as: An African- American defendant means his peers are fellow African- Americans, or in this case would the jurors be Muslims? Or what if all the jurors selected are Christians?

Will the terrorist defendants have a valid claim for appeal? Did they receive a fair trial if their "jury peers" were all Christians?

The 6th Amendment guarantees the accused the right to a speedy and public trial by an impartial jury. The phrase "jury of one's peers" is not included in the Constitution, however, the courts interpret peer to mean equal, i.e., the jury pool must include a cross section of the population of the community in terms of gender, race, and national origin. The jury selection process must not exclude or intentionally narrow any particular group of people.

A jury of one's peers does not mean a black defendant must be tried by an all black jury or a Muslim defendant must be tried by an all Muslim panel. But it does mean the objective is to select an impartial jury from a randomly selected juror pool who will be fair, listen to the facts of the case, and render a just verdict based on the 14th Amendment.

The issue than is does the selection process provide an unbiased and impartial jury, not if it failed to ensure a jury selected from a cross section of the community because Muslims would not be fairly represented in that jury pool. All potential jurors will have knowledge of the case and the questions of being able to select an unbiased jury will be impossible.

According to the government Manhattan, is one of the most experienced US jurisdictions in trying terrorists, but such a high profile case, so close to the scene of the crime on of 9/11, will not only involve major security considerations but will also have to consider how to present extremely sensitive U.S. classified evidence that the prosecution will try to present even though the government claims they will not need the classified information in order to get a conviction. The Government says they of new and different evidence. Even so the defense may be able to raise sensitive U.S. classified evidence issues as part of the defense.

"KSM", as he the main defendant has come to be known, and his four co-defendants have already allegedly admitted to their guilt and have described themselves "as terrorists to the bone" in a filing before a military commission at Guantánamo in March and have referred to their alleged involvement as a "badge of honor". But the fact that Mohammed was subjected to prolonged torture is likely to reopen the thorny question of how much of what the men have said can be relied on not to have been tainted. U.S. courts have held that any information obtain through torture is not admissible as evidence. President Obama has already publicly stated he believes water boarding is torture.

The defense’s case is expected to try and force the US government to reveal government secrets and confront a host of difficult legal issues surrounding U.S. counterterrorism tactics and other questionable behavior started after the 2001 9/11 attacks, including the harsh interrogation techniques, rendition and other methods adopted by the CIA and our allies. The U.S. Government has already admitted that water boarding – or simulated drowning and other techniques was used on Mohammed 183 times in 2003, before the practice was banned.

Mohammed has already argued with a judge during the reading of some charges against him and at that time refused to accept any non- sharia law or an attorney appointed by a court he does not recognize and is not governed by sharia law. He has also described the US Constitution as "evil" and said he would defend himself. 

The likelihood that the process will be lengthy was underlined by President Barack Obama.

"I am absolutely convinced that Khalid Sheikh Mohammed will be subject to the most exacting demands of justice. The American people will insist on it. My administration will insist on it," he said.

Obama's comments follow a ban on the use of hearsay and confessions extracted under torture in military commissions – words that will surely impact the coming trial process. 

Although New York has banned the death penalty, Holder said he would be asking for the death penalty in this case, because it was a federal crime.

Addressing concerns about a fair trial, given the use of torture, he said he would not have ordered the trial unless he was confident of a prosecution and hinted that there was evidence that could be presented other than had been obtained by water boarding or other techniques.

"I am confident," Holder said, "in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years."

Although some legal experts had predicted that Mohammed and his alleged co-conspirators would be charged for other offenses, Holder said that they would be prosecuted for the 2001 strikes that launched America's war on terrorism, and that in many ways defined the course of Bush's presidency.

"They will be charged for what we believe they did," Holder said, "and that is to mastermind and carry out the 9/11 attacks."

Still there are other problems political problems: What if the court system or jury finds the defendants not guilty for what ever reason perhaps some technicality? Would their Constitutional rights be violated again by re-arresting them and charging them with other and new crimes? The fallout from the Obama administration’s order to try the terrorist in the American judicial system is most likely a big mistake and will hurt this country and weaken our world image and put our Constitution in more jeopardy.

By Michael Webster: Syndicated Investigative Reporter.

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