- The Washington Times - Wednesday, November 18, 2009

President Obama stated last week that Khalid Sheikh Mohammed will face “the most exacting demands of justice” during his trial on federal terrorism charges. But justice is a two-way street. The trial can only be considered fair if there is a presumption of innocence and the possibility of acquittal. The defense team will use every avenue available to see to it that the Sheikh walks.

In the American legal system, the exacting demands of justice apply most importantly to the government. This was why the previous administration established a rule set appropriate to a global war against violent non-state actors who operated in legal gray areas. The Obama team has denounced the George W. Bush administration’s approach, but previous actions cannot be wiped away, and under current policies, the Sheikh has been granted a bevy of rights that the defense will claim have already been violated.

The defense can argue that the entire process leading up to the trial has been illegal and everything derived from it is the “fruit of the poisonous tree.” The Sheikh was picked up in March 2003 in Rawalpindi, Pakistan, by a combined team of Pakistan Military Intelligence and CIA operatives. The legality of his transfer to U.S. custody is murky. He reportedly was not read Miranda rights at that time and was refused a lawyer when he asked for one.

This is critical because in May 2009, the Obama administration instructed the FBI to begin giving Miranda warnings to terrorists captured overseas as part of the “global justice” initiative. It would be difficult for the prosecution to justify how the Sheikh was treated when it contradicts current administration policy.

The chain of custody for physical evidence probably does not meet federal standards, and even that which does hold up could be found to be illegally seized or transferred. This has implications that go well beyond Mr. Mohammed’s case. A laptop computer was found in the house in which he was captured with information on al Qaeda plans and operatives, some of whom were thought to be in the United States. The defense could argue that everything on the computer is inadmissible, and any past or future cases based on evidence on or developed from that computer also could be challenged.

It is unclear how many cases this might involve, but lawyers for terrorist suspects and convicts could explore motions to find out whether the potentially illegal evidence was used in any part of the process and seek to have those cases dismissed or convictions overturned.

Naturally, any evidence developed by the National Security Agency or the CIA would be of questionable legality, and in any case, the evidence the government would be willing to use would be limited by what could be revealed without compromising sources and methods.

The circumstances of Mr. Mohammed’s detention will be an important focus of the trial. The Sheikh was famously waterboarded 183 times, which the Obama administration quickly declared to be torture. This not only makes any statements he made in custody inadmissible but could be grounds for immediate release. The Sheikh also could claim that his right to a speedy trial has been violated because he has been in custody for six years; a ruling in his favor would dismiss the indictment.

The government is going to be in a position where it either has to defend the process that brought the Sheikh to court or seek ways to prevent these issues from arising. However, because Mr. Obama promised that Mr. Mohammed would enjoy the most exacting demands of justice, they probably will be given a full airing. We await a further explanation from the president to clarify how this makes the country safer, particularly if Mr. Mohammed leaves New York a free man.