Why You Can't Gaurantee an Outcome in the Khalid Sheikh Mohammed Trial

Bill Burck, a former prosecutor, has some insight into what could go wrong in the upcoming trial:

LOPEZ: The president told NBC’s Chuck Todd in China: “I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him.” Is there any way to guarantee that?

BURCK: There is no way to guarantee that. The judge and the jury will make those determinations, and neither the president nor the attorney general has any power to dictate the outcome of a federal criminal trial. I do believe that there is a lot of evidence against KSM; in fact, he may not wish to contest the charges in a conventional way and instead essentially proclaim his guilt but insist on a trial as a platform for his views. This would not be dissimilar to Moussaoui’s trial.

But remember two indisputable facts: Attorney General Holder has gone on record that he believes waterboarding is torture; and it is now known that KSM was subject to enhanced interrogation techniques, including repeated use of waterboarding. KSM’s lawyer will almost certainly ask the judge to throw out all the charges against him because he was allegedly tortured. How can the Department of Justice contest that KSM was tortured if the attorney general has gone on record that waterboarding is torture? They can’t. Jose Padilla and other convicted terrorists have sought to have charges thrown out on the basis of the so-called “outrageous government misconduct” doctrine, and so far they have not been successful (in Padilla’s case, however, the government did not concede that he had been abused). But no one can really dispute that there are some judges who would give serious consideration to KSM’s request based on his supposed torture, and there is at least some case law that supports it. That doesn’t mean he would be released if he were to get the charges dismissed — the Obama administration (I hope) would exercise other authorities available to it to keep KSM in some form of custody. But there is no doubt that once the grand jury returns an indictment, the prosecutors lose a lot of control and the most important decision-makers are the judge and the jury.