The basis of the case against Mohammed lies in his alleged confession, and a volume of documentary evidence that was taken when his hideout was raided and he was apprehended. According to the verbatim transcript of Combatant Status Review Tribunal Hearing for Mohammed, a preponderance of the evidence against Mohammed is circumstantial. His apprehension was accompanied by the seizure of a number of items, including computer hard drives. The hard drives contained, among other items, information about the four flights used in the September 11th attacks including codes, airline names, flight numbers, pilot names and background information, and the names of the hijackers. The drive also contained pictures of the nineteen hijackers. The drive also contained a document that had the pilots license fees for Muhammad Atta (a known September 11th highjacker) and a number of other hijackers. The drive also contained transcripts of a chat session with at least one of the hijackers. While compelling, this evidence is not direct evidence of Mohammeds actual conspiracy with the hijackers. Such direct evidence would feature video or audio recordings of conversations that directly furthered the conspiracy, or, in the alternative a statement by other conspirators implicating Mohammed. Despite popular conceptions, however, circumstantial evidence is as valid in court as direct evidence. Short of confession, there is often little direct evidence connecting an individual to a particular crime, and absent direct evidence, prosecutors often rely on circumstantial evidence. The nature of the evidence in this case may not individually offer proof beyond a reasonable doubt of Mohammads involvement, taken collectively, they offer more than a sufficiency of proof. The caveat in this case is that the evidence located on the hard disk drive would have to be connected directly to the defendant. The only information we have about how it was obtained is that it was seized when the suspect was apprehended. The suspect offered a witness who would make an offer of proof that the residence entered and computers seized did not belong to the defendant. In this hearing, this evidence was disallowed as irrelevant, but in a criminal proceeding, it would be admissible as exculpatory.
With respect to his confession, this was allegedly made to the news organization called Al Jazeera in 2002. The statements made by a defendant against his own interest to a third party that is not subject to privilege, is admissible as incriminating evidence. While the defendant himself cannot be forced to testify against his own interest, statements he made outside of court that tend to prove his culpability are an exception to the hearsay rule as they are considered to be admissions against interest. Mohammad made statements claiming that he was tortured by the CIA in 2003. If duress were used to obtain any evidence, such evidence would be inadmissible under the exclusionary rule, and any evidence obtained as a result of that statement would also be excluded as fruit of the poisonous tree. There is no offer of proof that the suspects incriminated himself during the alleged torture, or that the statements that he made during the Combatants Hearing were in any way coerced. In most criminal proceedings, even the implications of such impropriety would compel a trial judge to exclude the defendants own statements, but given the nature and volume of corroborating evidence, such exclusion would be unlikely in this case.
Another issue with this case, were it treated as a regular criminal trial, is venue. Holding such a trial in the venue in which the attack occurred would lead to enormous difficulties in obtaining a jury of unbiased observers. However, a change of venue within the United States would also be problematic, since the incident had profound emotional impact upon many potential jurors across the nation. Given that the nature of the jury pool is unlikely to be altered significantly by a change in venue, the case is best adjudicated in the jurisdiction where the incident took place.
Given the circumstances and evidence in this case, and the fact that the suspect seems to take pride in the connection he holds to the events, and would therefore be unlikely to refute the evidence on its merits, the likelihood is that he would be found guilty. Since the charge is the murder of almost three thousand people, it is likely that a guilty verdict would lead to a death sentence. In the case that the prosecutors are unable to link the computer evidence to the defendant, and the incriminating statements of the defendant are somehow repressed by the court, it is marginally possible that a jury may find insufficient evidence to convict Khalid Sheikh Mohammed.
Given that possibility, no matter how slim, relying on a regular criminal court to secure a conviction would not be in the best interest of the government to pursue Khalid Sheikh Mohammed as a normal citizen. Having been classified as an enemy combatant is more likely to be subject to military justice. The rules of evidentiary gathering are much vaguer in these types of investigations. According to provisions laid out by executive order, the treatment of enemy combatants does not hold much of the same limitations for prosecution as do those for a regular civilian defendant. Such persons are not entitled to public indictment, filing of criminal charges, right to counsel or independent review of the evidence against him or her. While subsequent high court decisions reversed many of these elements, including the right to counsel and requirement of habeas corpus, at the time of Khalid Sheikh Mohammeds detention and designation as an enemy combatant, these limitations did not exist, nor are they applied retroactively.
Such specific and defendant-friendly rules of evidence have not been applied to enemy combatants. Historically, the civil rights of citizens have been routinely suspended during times of War. Japanese-Americans were interned with no evidence, and denied habeas corpus during WWII. During the Civil War, Abraham Lincoln detained U.S. citizens without warrant, evidence or charge to protect Federal Troops moving through Maryland.
Given the history of American jurisprudence during Wartime, and the evidentiary pattern of the case against Khalid Sheikh Mohammed, the better safe than sorry approach would likely be best for prosecuting this individual. The acts that Khalid Sheikh Mohammed was responsible for are sufficiently inhumane, brutal, and arbitrary that no sense of justice in the abstract should prevent the United States from exacting a swift and total retribution against him.
Annotated Bibliography
Pereira, C. Chavkin, N. (2008) Habeas Corpus and Enemy Combatants Social Education, Vol. 72 (5) Pg. 236-248.
This article is a review of the legal standing that enemy combatants, or persons so designated between late 2001 and 2005 have been treated in federal court rulings. The article reviews a number of cases addressed by the courts that flowed from complaints filed by various enemy combatants that were denied substantive due process while under incarceration at Guantanamo Bay in Cuba. The article notes that a number of citizens who suffered from similar denials of due process during wars, specifically during WWII and the Civil War were found by the courts two have been treated illegally. In the cases mentioned, however, these rulings came well after the fact. Regarding the current war, thee cases reviewed in this article are Rasul v. Bush , Hamdi v. Rumsfeld, Rumsfeld v. Padilla, Hamdan v. Rumsfeld and Al-Marri v. Pucciarelli. These cases, decided between 2004 and 2008, illustrate the evolution of the Courts opinion regarding the treatment of detainees at Guantanamo Bay. In the earlier cases, the Court tended to side with the government in denying habeas corpus and other procedural rights to enemy combatants who were not U.S. citizens, but continued to uphold those rights for U.S. citizens captured in battle in Afghanistan and Iraq. By 2008, however, the Court had balked at administration attempts to remove all enemy combatants from the jurisdiction of Federalk Courts, and in so doing, opened the door for many of these detainees, some who had spent years in incarceration without explanation, a chance to file petitions of habeas corpus. The article is relevant to the examination of the Mohammed case, since Mohammed was designated as an enemy combatant, and his status as such is the subject of a portion of the work above.
Parrini, M. Williams, C. (2005) Enemy Combatants and the Courts Social Education, Vol. 69,(2) Pg. 103-110.
This article examines similar issues to the one presented in the Pereira, C. Chavkin, N. article. Unlike this other article, this work addresses deficiencies in the Supreme Courts rulings on some procedural issues other than habeas corpus with respect to the rights of enemy combatants. Some questions unaddressed by the courts, according to this article, include the time frame, during which a designated enemy combatant may invoke a sixth amendment right to counsel, how long a detainee may be kept without a trial given the indefinite nature of the war on terror, and which courts, military or civilian, have jurisdiction over the status challenges of enemy combatants.
This article does make mention of evidentiary problems associated with the classification of enemy combatants. In this article it is noted that the courts rejected evidence derived from statements that may have been coerced, and has fallen in favor of the totality of such evidence being reviewed by a neutral party.
The article is relevant to the paper about the Mohammed case because it addresses evidentiary issues specifically with respect to enemy combatants, and offers some insight as to whether certain elements of evidence in the Mohammed case would be admissible given his status as an enemy combatant.
Verbatim Transcript of Combatant Review Tribunal for Khalid Sheikh Mohammed (2007) Retrieved December 7th, 2009 from Cable News Network website
As the title suggests, this document puts forth the evidence that was used to designate Khalid Sheikh Mohammed as an enemy combatant. This evidence also serves as the basis of any criminal case against Mohammed for the murders of the civilians in the September 11th, 2001 attacks on the World Trade Center and other targets in the United States. The document discusses evidence that consists largely of documentation found on a computer in Mohammeds possession at the time of his apprehension. The computer included such details as the flight information of the targeted flights, the names of persons known to be hijackers, photographs of each of the hijackers, documentation of the fees invoked for the pilots licenses for the hijackers, and transcripts of conversations between hijackers. Additionally, the board commented that Mohammed had confessed to the Al-Jazeera news agency in 2002, telling of his masterminding of the 911 plot. The document also notes the panels rejection of certain exculpatory evide3nce, most compelling of which is a wit ness who claimed that the computer containing the vast majority of the evidence obtained, did not in fact belong to Mohammed. This document is relevant to the discussion of the evidence in the Khalid Sheikh Mohammed case as it enumerates most of the evidence that might be heard by a jury in a criminal proceeding.
Weisenberger, Glen (1999) Evidence Myopia The Failure To See The Federal Rules Of Evidence As A Codification Of The Common Law William and Mary Law Review, Vol. 40, (5) pg. 1539-1567
This article, while primarily a discussion of the status of the f4ederal rules of evidence as a statutory construction, enumerates and evaluates many components of the rules of evidence. Included in this discussion is the use and application of the exclusionary rule, and hearsay. Hearsay and its exceptions are an area of particular emphasis. The article discusses admission against interest, dying declaration and other circumstantial exceptions to the hearsay rule. It also lays out the guidelines denoted in the federal rules of evidence for the exclusion of evidence obtained in violation of due process. These discussions are relevant to the topic of the paper because they can be applied to the fact pattern of the Khalid Sheikh Mohammed case in order to judge the admissibility of the evidence at hand against Mohammed.
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