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Tom Jackson is in a 12-step program for recovering sports writers; as part of his rehabilitation, he writes a column centered on the people, politics, passions and peculiarities of Pasco County. Email

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Pasco County News | Breaking News

KSM’s path to acquittal on a technicality

Posted Nov 19, 2009 by Tom Jackson

Updated Nov 19, 2009 at 06:42 PM

The circus spawned by the decision to try the Guantanamo 5 in federal court in Manhattan is about the spin right out of its big top.

Consider this development chronicled by the alert fellows at Power Line, beginning with a little of Sen. Herb Kohl’s (D-Wisc.) debriefing of U.S. Attorney General Eric Holder:

KOHL: But taking into account that you never know what happens when you walk into a court of law, in the event that for whatever reason they do not get convicted, what would be your next step? I’m sure you must have talked about it.

HOLDER: What I told the prosecutors and what I will tell you and what I spoke to them about is that failure is not an option. Failure is not an option. This—these are cases that have to be won. I don’t expect that we will have a contrary result.

Failure is not an option! Let’s hope that’s true, in the sense that if a jury acquits KSM or fails to reach a verdict, he would be kept in custody anyway. But, that being the case, isn’t the criminal prosecution fundamentally fraudulent? Barack Obama, like Eric Holder, has assured the American people that KSM will be convicted:

In one of a series of TV interviews during his trip to Asia, Obama said those offended by the legal privileges given to Muhammed by virtue of getting a civilian trial rather than a military tribunal won’t find it “offensive at all when he’s convicted and when the death penalty is applied to him.”

Obama quickly added that he did not mean to suggest he was prejudging the outcome of Mohammed’s trial. “I’m not going to be in that courtroom,” he said. “That’s the job of the prosecutors, the judge and the jury.”

Can you imagine any other context in which the President of the United States would assure the public that a criminal defendant is guilty; that he will be convicted by a jury; and that he will be executed? Such comments make a mockery of the “rule of law” as normally understood.

It’s true, of course, that Osama bin Laden and Khalid Sheikh Mohammed are obviously guilty of the terrorist attacks of which they proudly boast. We don’t need a judge and jury to tell us this. In my view, we would be amply justified in simply shooting them.

But if only one jury verdict is acceptable; if the President is willing to assure the American people of conviction; if acquittal or a hung jury is “not an option;” if, assuming such a result, the defendant would be returned to prison anyway—then it is ridiculous to say that we are going through this charade in order to “vindicate the rule of law.”

Students of jurisprudence at it is practiced in the quaint backwater of Pasco County will remember what happened last year when state Sen. Mike Fasano, in an extremely well-meaning but misguided gambit, urged a certain judge to punish with extreme prejudice a couple charged with bilking a 91-year-old New Port Richey woman out of her home and savings—if they were found guilty. Fasano contacted the Circuit Court Judge Jack Day merely by letter, but news of it caused Day to declare a mistrial, and Fasano to apologize profusely.

How much worse is Obama’s meddling? With the world as his audience, he’s already convicted KSM and bound him over to be executed. Is that prejudicing the potential jury pool? If so, where’s an appropriate change of venue—Mars?