The price of trying KSM: Defense lawyers will create bad law

No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial. So what’s a team of hardworking criminal defense attorneys to do?

Everything they can, which, in this case, will mean a lot of futile maneuvering that will generate a tragic flood of bad law, rendering the defense team’s valiant service not merely unsuccessful but actually hostile to the interests of all their other clients…

Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM’s initial torture from his subsequent “clean team” statements will provide a blueprint for the government, giving them the prize they’ve been after all this time—a legal way both to torture and to prosecute.