KSM will never get a civilian trial

Though New York City will apparently be spared the unnecessary expense and disruptions of a civilian trial of Khalid Sheik Mohammed & Co., President Obama and Attorney General Eric Holder are threatening to take the show on the road to some other unfortunate locale. But mark our words, it won't happen.

KSM and his cohorts will be tried in a military commission at Guantanamo Bay -- because the administration has made it almost impossible for them to get a fair trial in a civilian court.

In a typical criminal case, the government says very little outside of court, and what it does say in public is limited to a plain-vanilla recitation of the accusations with liberal use of the word "alleged" before the charges, as well as a reminder that everyone is innocent until proven guilty. This is for good reason: A defendant has a right to a fair trial, and pretrial publicity that is unduly prejudicial will deny the defendant that right.

EPA

Gibbs: Bam spokesman helped queer KSM prosecution.

And it's hard to imagine a trial that has had more prejudicial pre-trial publicity than the one planned for KSM. His lawyer will demand that the case be dismissed because it is impossible for him to receive a fair trial. It will be quite a challenge to argue the contrary.

Administration officials seem to have gone out of their way to make life easy for KSM's lawyers. Attorney General Holder, the nation's top law-enforcement officer, has said KSM is guilty and should die. The president has said more or less the same, though he has tried to qualify his statements.

Most recently, the president's chief spokesperson has said that no matter where KSM is tried, he "is going to meet justice and he's going to meet his maker."

Pros like US Attorney Preet Bharara have maintained their silence to protect the integrity of the trial, but that professionalism is undermined when the president's spokesperson goes out of his way to assert that KSM's "likely to be executed for the heinous crimes that he committed in killing and masterminding the killing of 3,000 Americans. That you can be sure of."

The administration sees this as a show trial, pure and simple. As the attorney general has said, "Failure is not an option." Of course, failure is supposed to be an option in a truly fair trial. It's difficult to imagine any place in the United States that would not be prejudiced by these types of statements coming from the White House and Justice Department.

The Obama administration can't afford even the remote possibility that a federal judge will rule that KSM cannot receive a fair trial. Indeed, one suspects that the administration's most recent guarantee of KSM's execution is a hint it is no longer concerned at all about pretrial publicity, because the decision to send the matter back to a military commission has already been made.

There are similar concerns in a military commission -- but those are generally about "undue command influence," in which superior officers in the chain of command make statements that suggest they have a preferred outcome. And the president, as commander in chief, is in the chain of command for a military commission, but the attorney general and civilian White House staff are not. At least he has tried (albeit in fits and spurts) to use the word "alleged" when talking about KSM.

In any event, the Obama administration runs a much higher risk that a federal judge, rather than a military judge, will throw out the charges against KSM because he cannot receive a fair trial. This is a risk the White House will not run.