SG: Since both venues are acceptable from a process point of view, just the need for nuance is a conscious decision that needs explanation — you haven’t explained it.

I explained it. You just don’t like the explanation. I said I find the OP plausible. I’m not attached to it, but until I hear something better, it’s my working hypothesis.

I still think Occam’s razor cuts in my favor — this decision was either stupid or conspiratorial — I still haven’t heard anything resembling a compelling good faith explanation for it.

You disagree with it. That doesn’t mean you didn’t hear it. And you may want to bone up on Occam’s razor if you really think it favors your conspiracy theory. As for the “stupid” option, you already rejected that. Are you backtracking?

I note in passing that you didn’t even try to present one;
I don’t consider your vague insinuations to represent any sort of actual argument.

Do you really want me to paste the OP here? I gave you more credit than that.

Do most people agree with you?I don’t know and neither do you, so your unfounded speculation is worthless.My guess is that people who support Obama would be inclined to agree with you and people who don’t support him would be inclined to agree with me.

The only thing I speculated most people would agree with is that your conspiracy theory is pure ODS. The idea that Obama and Holder would intentionally sabotage KSM’s trial, and risk putting him back on the street for self-serving political ends is wingnuttery of the highest order. Sure, conspiracies do happen, but the burden is on the person alleging it to come with something better than “I can’t think of anything else.”

As for my speculation that the majority of Americans would agree with that, I’d put every penny I have behind it. But if you want to believe your conspiracy theory has traction with anything approaching half of the public, it’s your right, but good luck with that.

Your superior nuance is duly noted, and might even be valid if we were asked to choose between the two venues, but we’re not. Since both venues are acceptable from a process point of view, just the need for nuance is a conscious decision that needs explanation – you haven’t explained it. I still think Occam’s razor cuts in my favor – this decision was either stupid or conspiratorial – I still haven’t heard anything resembling a compelling good faith explanation for it. I note in passing that you didn’t even try to present one; I don’t consider your vague insinuations to represent any sort of actual argument.

Do most people agree with you? I don’t know and neither do you, so your unfounded speculation is worthless. My guess is that people who support Obama would be inclined to agree with you and people who don’t support him would be inclined to agree with me. The most recent polls have Obama’s support under 50%, for what it’s worth.

Hey, Bush was re-elected with a majority, therefore his decision to invade Iraq must have been correct, right? Or is argumentum ad populum still a logical fallacy?

Put all that together and there is one inescapable conclusion: extreme and damaging incompetence by the Obama team.

However, that doesn’t go to motive. The conspiratorial motives (bad terminology, btw) – i.e. political motives – are entirely consistent with this administration’s behavior on every issue, especially this one. The only alternative I can see is some sort of dreamy-eyed fantasy that this farce will somehow improve our standing in the eyes of the world.

Hence the term idiocy holds solidly. The “try Bushites” suggestion isn’t refuted.

SG: And as far as the original post goes, frankly it’s stupid and I’m giving Obama and Holder the benefit of the doubt that they are not stupid.

It’s only stupid if you reduce every consideration to a simple binary, e.g., legitimate or illegitimate, maximum due process or not enough to pass constitutional muster, etc. That’s incorrect, and the OP is but one very plausible analysis that follows from the actual nuanced gradations between the two venues. Your objections are addressed too clearly in the OP for me to repeat any of it here. You disagree with the conclusions? That’s your right, but the conspiratorial explanation you prefer puts you odds with at least Occam in addition to Posner, myself and I’d guess most others.

Yes, and I already responded to it above.

And as far as the original post goes, frankly it’s stupid and I’m giving Obama and Holder the benefit of the doubt that they are not stupid. Having a two-tier system undermines the legitimacy of both tiers. The military commissions ultimately must provide sufficient process for their decisions to be credible. If they do, then there’s no reason to have a second-tier. If they don’t, then cherry picking between the two-tiers renders the overall process illegitimate, even for people subjected to the higher-tier because we always retained the option of putting them through the lower-tier (“Damned if you do, damned if you don’t” does not meet my notion of a fair process). Nor do I accept the notion that the military commissions are ipso facto lower quality. I have no personal knowledge, but everything I’ve read says if you’re a defendant, the UCMJ is better if you’re actually innocent, Article III courts are preferred if you’re guilty.(*) The two systems have differences, but one is not clearly higher-tiered relative to the other and both provide sufficient due process.

[...]

(*)As an aside, if this is true it even further calls into question the wisdom of putting KSM in front of an Article III court.

SG: Conspiracy theory? Sure. But it fits the facts better than anything anyone defending the decision has been able to come up with.

Did you read the OP (by AFAIK a non-Obama supporter)?

(I’m not Richard, but I’ll give it a go…)

Here’s my issue. So far, Obama and his defenders have only been able to invoke the Chewbacca defense for Obama’s decision – all the justifications offered so far make no sense. Given that, it’s unsurprising that people (myself included) start considering conspiracy theories. I suppose an alternate explanation would be to assume that Obama is dumber than a box of rocks, but I respect our president enough to reject that explanation.

My personal conspiracy theory is that he believes the defense will delve into great detail on the treatment KSM received and use that as grounds for a dismissal (as it should be in a criminal proceeding). Obama will get to spend the entire trial tsk-tsking about how evil America was before he become president and then get to blame George Bush when KSM is set free. Let’s face it, not being George Bush is really all he’s been able to bring to the table so far and this provides a way to milk that into the next election cycle.

Conspiracy theory? Sure. But it fits the facts better than anything anyone defending the decision has been able to come up with.

Dennis:

Richard Aubrey:

If Brian G is indeed doing sarcasm, he’s doing it extraordinarily well, far better than Sarcastro.

Not sarcasm at all. Being from San Francisco, and having long ago been an activist on the far left myself, I am quite familiar with the perspectives as articulated.

Anything so consistent with your preconceived narrative can’t be sarcasm by someone with the same bias? Then keep believing what you want to believe, facts be damned. It speaks volumes.

Don’t beat around the bush. Tell us which foreseeable, catastrophic results you believe Obama may have intended.

John D:
I too am wondering just how they intend on getting around the “Miranda” problem?I’m not a lawyer but I can’t see any arrangement that doesn’t result in either a dismissal, overturn on appeal, or some serious damage the rights of American citizens.

Orin Kerr explained why your concern is misplaced:

“The Fourth Amendment question has an easy answer: The detainees would not acquire any Fourth Amendment rights because their presence in the United States is involuntary.”

- – - – - – - – -

John D: Which leads me to believe that this was a political decision, not based on any jurisprudence.

So you believe Holder decided on an Article III trial for KSM as a way to get his case thrown out and put him back on the street? Right. And it was Obama who planted the thermite in WTC #7, right after he dug it up from the grassy knoll. Do you guys listen to yourselves? Do you not realize how unhinged some of your claims are?

Richard Aubrey: If Brian G is indeed doing sarcasm, he’s doing it extraordinarily well, far better than Sarcastro.
In fact, he sounds just like the folks on TalkLeft after Stewart’s first trial.

Not sarcasm at all. Being from San Francisco, and having long ago been an activist on the far left myself, I am quite familiar with the perspectives as articulated.

Brian G.: Lynne Stewart is not in jail.She has been free on bail since 2002.if she is so guilty, why hasn’t the judge revoked bail?

The 2nd District Court of Appeals (Manhattan) upheld her conviction last week, revoked her bond, and ordered her to surrender for jail immediately. Furthermore, the panel agreed that her sentence (28 months) was inappropriately low, finding that she was guilty of “intent” and that she had lied to the court, and therefore remanded the case back to the trial judge for evaluation of a longer sentence. See here:

http://cityroom.blogs.nytimes.com/2009/11/17/conviction-of-lynne-stewart-is-upheld-and-bail-isrevoked/

The president should indeed pardon Ms. Stewart if he feels this is a miscarriage of justice. And, according to the view articulated in your posts, the president should also recant his presumptive statement that KSM will be convicted and executed. If the president does indeed share your perspective, given the agreed upon gravity of the issue, he should certainly inform the electorate accordingly.

I can just see this as a Monty Python skit whith John Cleese as the Judge “Oh well. If the evidence against the defendent is overwhelming, of course you did not need the Mirandize him.”

SG: I disagree.I think this is going to establish precedents that are far broader reaching.For example, apparently criminal cases no longer require Mirandizing someone in a custodial interrogation if the case against them is “overwhelming”.

I too am wondering just how they intend on getting around the “Miranda” problem?

I’m not a lawyer but I can’t see any arrangement that doesn’t result in either a dismissal, overturn on appeal, or some serious damage the rights of American citizens.

Which leads me to believe that this was a political decision, not based on any jurisprudence. And, protestations that AG Holder alone made this decision does not matter. The buck stops in the Oval Office.

Nothing good will come of this.

Richard Aubrey: Worst, the trial gets to be a circus, we have a major intel dump (probably one of Brian G’s hopes), we have a terrorist catastrophe, and the guy’s acquitted, after which he’s either incarcerated for life or until we need some collateral for an oil deal, or executed. (emphasis added)

See my above comment.

Open both eyes. You’ll have better depth perception.

Ironies abound.

But enough of Lynne Stewart. Bush’s war crimes will be on display for the world to see. The ICC should take jurisdiction once Bush’s war crimes are proven and arrest Bush when the opportunity arrives.

geokstr:
Finally. A leftist with enough honesty to admit that not only is Obama is a lying SOB, but also that it’s totally acceptable to the left, because we are going to get that evil capitalist-roader Nazi Bush/Cheney. (See Rule #13, but you guys already knew that.) Just another despicable thing that the left agrees on with one of its major allies: taqqiyah (the official approval of lying to infidels in order to advance the Religion of Leftism.) 

Guess what. You’re in a circle-jerk, but you so badly want to believe the fantasy you’ve convinced yourself you actually got lucky. Do you really not know that Brian G is one of you? The comment you quoted is his attempt at satire. For the last few months he’s been trying to affect an anti-Sarcastro persona. Here (1 2 3 4) are a few of his older comments in case you don’t believe me (Why should you? After all, I’m a lying, Amerika-hating liberal).

Andrew J. Lazarus: The loser in NY-23 is now claiming that his lost election was stolen by ACORN. That’s lost, and that’s racist. (Disproportionately-black ACORN didn’t even have anyone working in NY-23, but it’s become some sort of bogeyman—I wonder why!?). Indeed much criticism of Obama is some sort of knee-jerk reflex, and the extent to which it combines hatred of blacks, Democrats, liberals, and educated urban elites—Obama and Holder fit every group there—is a great question. What it isn’t is reasonable: prosecutors make venue decisions all the time with much less fuss.As for the trial, whether it is a show trial or a show-off trial (good phrasing, that) depends on how the trial itself is conducted, not on Obama.Incidentally, in my view when your argument has devolved into a discussion of Lynne Stewart and not Obama, you’ve lost. But I don’t try to play the game and be the umpire. That’s rude.

Acorn is no doubt responsible for the Senate being 60-40. They definitley fraudulently delivered the election to Frankin.

Acorn is what Dems are: liars, cheats, theives, thugs, etc.

Andrew, thank you for your response to my questions. In my view, those are central to the decision and, while I do not agree with your perspective, I do appreciate your clarity. I would only add that since it is the overseas masses, in particular in Islamic countries, that are the primary audience for these trials, what is only relevant is how *they* will perceive what is done. Given the already negative bias there (which long precedes Bush, let us not forget the dancing in the streets immediately following 9/11), personally I cannot conceive of our selectivity based upon prosecutorial advantage, the presumption of guilt and execution announced by our president, the statement that the result if acquittal will still not result in release of KSM, and the continued indefinite incarceration of numerous other detainees without trial, not being received with the utmost negativity in that part of the world (whoa, now that’s a run-on sentence!). We must just agree to disagree, and leave it at that.

Also in fairness I should mention that it was me that raised Lynn Stewart, in response to Brian G.’s highly inflammatory and accusatory post in which he defended KSM’s innocence (until proven guilty). This of course is totally inconsistent with the adulation of the president articulated in the post, given that the president himself has publicly announced that KSM is guilty and expects his execution. Recognizing the similarity in perspective voiced in this post to that heard from Ms. Stewart, I postulated a possible symbiosis between the two. As it turns out I was correct, as in Brian G.’s response he exonerated Stewart (despite her conviction after multiple appeals). Subsequently Anderson, who is agreement with your position, responded to Brian G. pointing out KSM’s admission to the Arab press; Brian G. as expected dismissed that out of hand.

These debates can regrettably become over-heated, overshadowing analytical thinking and reasoning – IMO we are all vulnerable to that. However, when the debate gets to the point that the likes of KSM and Stewart are being defended, that is where I draw the line.

Thanks again for your civil response.

Richard Aubrey: Anyway, I trust I’ve addressed the possibility that the terrs will try something and possibly succeed beyond the usual dismissal-by-disgusting-glottal-noise tactic.

But I don’t understand how this ties in with a civilian vs military trial. Are you arguing that Hasan of Ft. Hood [why are we naming forts after a Confederate general who led his army into catastrophe anyway?] was motivated by the rumor KSM would be tried in New York instead of Gitmo? I don’t believe that’s what you are arguing, but is there anything to what you are arging except a general fear of what terrorists can do?

They have nothing on the U.S. government. The death toll in Iraq alone dwarfs 9/11.

I disagree. I think this is going to establish precedents that are far broader reaching. For example, apparently criminal cases no longer require Mirandizing someone in a custodial interrogation if the case against them is “overwhelming“.

Bad cases make bad law, and this is a bad case. Perhaps it didn’t need to be a bad case and the only reason it is a bad case is because of George Bush, but that in no way excuses Obama for forcing it into a forum where it will become bad law given that he has accepted the legitimacy of alternate forums where it would not be precedential.

Richard Aubrey: Open both eyes. You’ll have better depth perception.

Hah! I’m stereoblind in real life, barely know what depth perception is.

Let’s just look at one of your comments. Somehow, according to you, a trial in NY is going to make the terrorists attempt “bloody statements” there. Hunh? Do you really think that if the terrorists could hit NY again they would demur just because KSM was facing a military tribunal in Gitmo instead of a civilian trial in Manhattan?? I don’t.