Anyone interested and plenty who are not have seen the Attorney General, Eric Holder, making his arguments as to why the transfer of Khalid Sheik Muhammed from Guantanamo to the Southern District of New York for trial is not just Good; not just Superior to the previous status quo, but rather Necessary. Indeed, he claims to be correcting a derilection, committed by You Know Who.

Well, we may take the AG at his word here. He is a smart guy, a seasoned attorney and obviously has nothing but the best interests of the nation at heart. But the foundation for much of his PR case and his dismissal of objections is his bedrock certainty that he will deliver not convictions merely. No, he avers that he will deliver executions. And in a timely fashion. “Timely” may be a term of art subject to litigation but can anyone with passing acquaintance with the news think this could mean anything less than a decade? Okay, Mr Holder may be stretching his Benefit of the Doubt quotient but we may put aside even this fudge. The definition of “timely” will prove, obviously, to be determined by acclamation in the New York Street some time down the road.

So the Attorney General promises a conviction. Failure, as he says repeatedly, is not an option. And for him, it is not. He has yet to say it but implicit is that a failure to convict or sentence to death will fall on his head. With what weight? Ah, who knows? But failure, optional or not, is generally a death sentence for these political types. Mr Holder has bet his own head on the quick scalping of Muhammed and four of his fellows. Well Mr Holder, I wouldn’t be spending much on hair care products if I were you.

There are only two possible outcomes here, excepting escape, suicide or guilty pleas from the defendants. Either they will be returned to their previous state of detainment or they will walk. Holder declares inevitable what is quite nearly impossible. His promise of convictions rests on  his possession of evidence unknown to the outside world at this point, that was collected through means consistent with all the rules of evidence in a criminal trial. But that is, sorry to say, merely his legal opinion, if it is even that. Once that evidence is introduced, not in the trial but in the pre-trial discovery phase, it will be the DUTY of the defense team to contest the admissibility of that evidence at every turn. Even if prosecutors prevail in every instance at trial, an absurd proposition, each objection becomes a fulcrum for the appeal which is mandatory and gub-funded in death penalty case. There is no need to imagine some ACLU chicanery or double dealing to see this, any half-paid, half-witted public defender would take this approach as far too obvious to ignore.

So the declarations of Mr Holder aside, those who anticipate convictions, quick or otherwise, are just doomed. Let us hope they are doomed only to dissappointment. But even that analysis is premature. Long before any evidence is even considered in discovery, Mr Holder faces the serious challenge of empanelling a jury. Gee, just what could be so tough about that? All The People (Mr Holder’s client) need do is find twelve impartial citizens of the age of majority, right? Oh, so so wrong. You have to cross the finish line with twelve. Even an ordinary murder case would demand something like eight or ten alternates. Could this lengthy, complex and dangerous trial require any less than thirty? But even that is a quibble since it would be nearly impossible to find anyone in the nation, much less New York who could honestly claim near ignorance of the events of 911. And each trial will require such a miracle. Well, this also is nothing for Mr Holder to fear as he will never get as far as interviewing jurors.

Not in New York anyhow. The first motion any basically competent lawyer would file in this case is for a change of venue. And how could that possibly be denied? The simple facts above demonstrate that a “fair” trial, in the sense defined in precedent, cannot be had in New York. Indeed it could not be had anywhere in the US, but they could remove it to a MORE congenial location; maybe San Francisco, but if there is no possibility of a fair trial, what is the court supposed to do?

Friends and neighbors, do not fear the release of Khalid Sheik Mohammed. There is no point fearing the foregone. Any judge, any prosecutor, any defender will, produce the same result. Our Attorney General has just made a foolish promise. There will be no convictions. From these proceedings, there will be no executions. But also there will be no release. Could even Obama survive a backlash like that? He would be a fool to try. No, with dismissal, not acquittal, Holder will try to refile and refile and refile but in the end Mohammed must either be released in accordance with the conventional criminal law or he will have to be detained in accordance with Bush era national security practices. They will choose the latter. So do not fear the release of Khalid Sheik Mohammed but what you may apprehend is that the final result of this strange decision that sought to bring “justice” to Guantanamo will do no such thing, but it will bring Jihad into our courtrooms. Whether that is a positive development will also be determined by acclamation on the New York Street.

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