Conducting Terrorist Trial In Federal Court In NY Will Restore International Respect For The United States

The following column was published in The Danbury News Times on Sunday November 29, 2009

By Jim Diamond

United States Attorney General Eric Holder and The Obama Administration were presented with a choice. They could have chosen to submit Khalid Shaikh Mohammed and the four other alleged 9/11 terrorists to face prosecution either in federal court by federal prosecutors before a federal judge conducted under federal law and procedure, or in the alternative, could have had them face a trial before a military tribunal.

Either decision would have been legally justifiable.

It would have been justifiable to try them in a military tribunal because, as the grieving family members of the 9/11 victims rightly point out, Mohammed, Al Quaida and radical Islam have declared war against the United States. The 9/11 attacks were an intentional expression of a wartime agenda, and Mohammed was a key general in that war. The Americans murdered on 9/11 were innocent victims of an assault on the United States and the American way of life.

The murders, however, were also a violation of federal law, the crimes were committed here on our soil in New York City and not abroad. Mohammed, not an American citizen, is classified in international law as an “unlawful combatant,” not a prisoner of war (POW). Under the Geneva Convention of 1949, a person is a POW if they: (a) are commanded by a person responsible for his subordinates; (b) have a fixed distinctive sign recognizable at a distance; (c) carry arms openly; and (d) conduct their operations in accordance with the laws and customs of war.

Since Mohammed is clearly not a POW but a foreigner alleged to have plotted a horrific and barbaric mass murder on our soil, kidnapping Americans and murdering them with American civilian airline jets, either system of prosecution is justifiable. Neither system will provide true justice for this rogue act of barbarism. As with all horrific crimes that shock our sense of a civilized human existence, any procedures with rules and decorum will feel out of place and elevate Mohammed to a level he seemingly does not deserve.

Khalid Shaikh Mohammed after capture

So why do it?

A civilian trial in a United States District Court will be held to an even higher level of decorum than a military tribunal. The rules of evidence in federal court are stricter than in a military tribunal. The following evidence is allowed in military tribunals but will not be allowed in a federal civilian trial: coerced testimony, hearsay testimony, and written statements not subject to cross-examination. Federal judges and prosecutors have, since 1993, accumulated an impressive record of trying and prosecuting hundreds of suspected terrorists. They prosecuted in a federal court in New York Ramzi Yousef, the mastermind of the first World Trade Center bombing, Omar Adbel Rahman,  the “blind sheik,” and a federal court in Virginia put on trial Zacarias Moussaoui, the “20th hijacker.”

New York Federal Court

At this time in history the United States needs to further repair an image tarnished during eight years of the Bush Administration. That administration and the manner it treated military prisoners gave minimal rights to the accused, allowed torture and had to be reined in a number of times by the Supreme Court, a court known to be otherwise conservative when it comes to the rights of the accused. In one such strong rebuke, Supreme Court Justice Anthony Kennedy wrote for the majority in Boumediene v. Bush, “the laws and constitution are designed to survive, and remain in force in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.”

Mohammed would like nothing more than for us to summarily execute him; he craves for us to imitate his barbarism. He wants us to do that so that he and his fellow radicals can hold us up as international oppressors. The appropriate way for us to defy him is to make no apologies, to hold our heads up high and conduct the most fair, dignified proceeding possible. Not because we are weak, but because we are strong. And in acting with elevated rules of procedure and decorum, and conducting an open and public trial in a federal courtroom in New York we will demonstrate to the world, and history shall record, that we are a nation where the overriding principles are the rule of law, of fairness and a dedication to human dignity.

The memory of the victims of 9/11 deserve nothing less.

Big Brother Was Watching Raymond Clark

Big Brother is watching you.

In Connecticut most arrests are made when the police show up on-site and make an immediate arrest.  In many states the other method would be by a grand jury indictment, but not Connecticut.  The second method here is where police ask a Superior Court Judge to approve an arrest warrant.

That’s how Raymond Clark was arrested.  New Haven police detective Scott Branfuhr applied to Judge Roland D. Fasano for approval of a warrant charging Clark with the murder of Yale graduate student Annie Le.  The warrant had originally been sealed, but last week Judge Fasano approved its unsealing and it is a foreshadowing of what the state’s case against Clark will look like.

Clark appears in New Haven Court for arraignment

Like many modern murder cases, the case against Clark is circumstantial; there is no eyewitness or confession.  This case is highly dependant on scientific DNA evidence, analysis of blood, hairs and fibers found on clothing and other items to connect samples collected to the humans they belong to.

What is most striking about this case,  however,  is how dependent it is on two forms of electronic surveillance.  Clark and Le’s physical movements at the time surrounding the alleged murder were recorded on video cameras posted inside and outside of the Yale Animal Research Center located at 10 Amistad Street in New Haven.  Their movements around the interior rooms of the lab are documented by Clark and Le’s swiping of electronic key cards at interior doors as they moved around the rooms of the lab.

This double whammy of surveillance is noteworthy for a number of reasons.  The video surveillance shows the clothing Clark wore when he was in the building where police say he committed the murder.  That allows prosecutors to link the evidence of what they claim is Le’s blood found on the boots, for example, to be the boots actually worn by Clark during the commission of the crime.  The key card swipes not only place Clark and Le in the rooms where the evidence was found, but put them there at the important times.

How often are our whereabouts documented by electronic surveillance?  How often are our movements electronically traceable by our use of a host of the variety of modern day centralized cards we all use like credit cards, toll systems like E-Z Pass, commuter system cards like Metrocard; not to mention e-mails and text messages sent?

Video cameras are everywhere now, in office buildings, stores, parking garages and on street corners.  Our comings and goings are taped wherever we go.  The combination of the video and the key card evidence New Haven prosecutors have in the Clark case are law enforcement tools I did not have available to me when I was a state prosecutor in the late 1980’s and early 90’s.   That, combined with the other electronic footprints people leave behind,  are a significant change in how people’s movements will be proven in courtrooms across America.

And it is a sobering reminder that Big Brother is watching.  Act accordingly.

Can We Blame Oprah for Putting Charla Nash on TV?

Charla Nash appeared on the Oprah Winfrey show yesterday. Nash is the victim of the horrific attack by a 200-pound adult chimpanzee owned by her friend and employer Sandra Herold in my hometown of Stamford, Connecticut. Nash deserves a world of credit for the appearance, as it took a tremendous amount of courage for her to appear. The disfiguration to her face is shocking.

Paramedics responding to the February 16, 2009 911 call said they found pieces of Nash’s fingers strewn on the floor and her hands looked as though they had been through a meat grinder. “The monkey had ripped off her entire upper jaw, had ripped off her nose, which as hanging by a thread,” said Dr. Kevin Miller, who treated Nash when she taken to the emergency room. “We found extensive dirt, chimp fur, and chimp teeth implanted in her bone.” Nash is missing both hands, but had a thumb surgically replaced on her left hand. Doctors removed her eyes and grafted a piece of her leg to where her nose used to be.

Nash could have attempted to continue to avoid the spotlight and nobody would blame her. Her every move is followed by cameras as the community gathers for a digital glimpse. Many people, certainly those of us who live in Stamford, were curious to view her injuries. I have to admit feeling embarrassed and shamed, however, for being drawn to watch the interview and I wish I never did. It is quite a spectacle to display this tragedy on national television, regardless of the fact that it has been done with Nash’s permission. It’s like a massive international rubber necking delay on the electronic interstate.

What does it say about a society which insists on marveling at pain and suffering? And that the tragedy happened in the prosperous suburban City of Stamford? That same City that had to rescue a bankrupt center for the arts with trash talking daytime television?

What have we become? Today is not a proud day for broadcasting, for journalism or for Stamford. It’s not a proud day for any of us, me included, who did not have the self discipline to stay away.