Sometime in the next few months, a small group of experienced criminal-defense lawyers will be assigned to what is likely to be the case of a lifetime: the defense of admitted 9/11 mastermind Khalid Sheikh Mohammed, or, to those enamored of sinister acronyms, KSM. Their work will not be easy, obviously. No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. So what's a team of hardworking criminal defense attorneys to do?
Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients.
The defense in KSM's case has two major weapons: persuasive evidence of torture that should result in the suppression of a great deal of evidence and use of the discovery process to uncover facts that embarrass or discomfit the government. These tactics work—if the government will come to the table to work out a deal. Take, for example, the prosecution of the "American Taliban" John Walker Lindh, currently serving the eighth year of his 20-year sentence. Lindh was captured by the Northern Alliance in Afghanistan in 2001 and charged in the eastern district of Virginia in 2002 with conspiracy to provide material support to a terrorist organization. At the center of his case was a confession he made to interrogators from the FBI and U.S. Marines. Lindh's defense team turned up evidence to support the claim that Lindh was duct-taped to a stretcher, placed in a metal shipping container, and, with a bullet still inside him, interrogated without a lawyer, despite a warning from a Justice Department ethics adviser that such a move was unethical. The defense lawyers obtained graphic photos of an emaciated Lindh as well as confidential and internal Justice Department e-mails that seriously undermined Attorney General John Ashcroft's public statements about the legitimacy of the interrogation. All of which led the government to make an offer: Instead of the three life sentences he was facing, Mr. Lindh could have 20 years, as long as he abided by a gag order and dropped all claims of torture and mistreatment against the government.
This time, however, the government isn't going to make an offer to KSM, and even if prosecutors did, it is hard to imagine that a zealot like him would prefer to plead guilty than take advantage of the forum a trial affords. Thus the defense's tools won't work. Which brings us to the making of bad law.
Good criminal defense attorneys are seldom deterred by futility, so it's reasonable to expect that KSM's lawyers will make all the arguments there are to make: They'll allege a violation of KSM's right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They'll seek suppression of KSM's statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree. They will demand the names of operatives and interrogators, using KSM's right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret—the identities of confidential informants, the locations of secret safe houses, the names of other inmates and detainees who provided information about him, and a thousand other clever things that should make the government squirm. The defense will attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods. They'll move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.