That's not to say that the U.S. Attorney for the Southern District of New York will do anything inethical or improper. It's just that by looking at the Obama Administration's own words, the outcome has been politically determined and regardless of any adverse developments in the trials, Khalid Shiekh Mohammed and his co-conspirators will never go free.
Can any of you say, with seriousness, that were there to be an acquittal in U.S. Federal Court, that the Obama administration would set these men free? The idea of an acquittal is not far-fetched, or based on contempt for New Yorkers or the criminal justice system. It's based on the fact that confessions obtained without Miranda warnings, or by coercion, or evidence seized and searches conducted beyond the scope of the Fourth Amendment are inadmissible as evidence.
Now I'm sure that the Justice Department is confident that they have admissible evidence sufficient to go forward, but more than a few prosecutors have had evidence that they believed was constitutionally obtained get tossed. It's the basis of many if not most of government appeals in criminal cases.
So, the question becomes, what if the unthinkable happened? What if a New York jury, oath-bound to acquit if not convinced beyond a reasonable doubt, acquits these men, be it based on insufficient admissible evidence or simply the ability of defense lawyers to make the trial of the criminal into a trial of something else (see People v. Oranthal J. Simpson)
The answer is that Khalid Shiekh Mohammed and his cohorts would be rearrested and likely tried by military commission for war crimes, or possibly for the attack on the Pentagon, assuming that the Pentagon attack is not included in the New York indictment. Obama himself said that "I am not going to release individuals who endanger the American people."
But there is more to indicate that the outcome has been largely predetermined. Attorney General Eric Holder himself said:
I would not have authorized the bringing of these prosecutions unless I thought that the outcome -- in the outcome, we would ultimately be successful.
In short, if the AG had thought, "Wow, we're going to lose if we go to trial", he never would have authorized the trials. Don't think that's an accurate representation? A few questions later:
QUESTION: Can you tell us if -- if -- you can't ensure, obviously, an outcome. You can't ensure that these people will be -- will be convicted. What happens if they -- if they're not convicted? Will there be indefinite detention for those that are -- that are not convicted?
HOLDER: I would not have authorized the prosecution of these cases unless I was confident that our outcome would be a successful one.
Holder, later in the news conference, denied that it was a question of outcome, after saying that he wouldn't have authorized them if he was not confident of a positive outcome.
It seems, based on this, that the administration has made a calculation to try these men based on the chance of successful prosecution. Had the chances been poor, they would have been happy to keep these men indefinitely or try them by military commission. In other words, their claim that they're simply upholding the rule of law is a fig leaf. Rule of law requires bringing these men to trial regardless of chance of success, and releasing them if acquitted. Politicized law requires making a big show of putting men on trial where their conviction and/or continued detention is ensured regardless of the trial.
UPDATE: Nothing of what I wrote above means that the trial will be a sham. A show trial is not necessarily an unfair or rigged trial. I know many Assistant U.S. Attorneys, included some who have worked in N.Y., and they would not let the process be corrupted like that. In all likelihood, they will absolutely get a conviction in a procedurally fair trial. But where the outcome (continued detention of the accused) is going to be the same regardless of verdict, then you cannot claim that this is a victory for the rule of law.
UPDATE: Yes, every prosecutor is loathe to go trial unless he/she is confident they can get a conviction. The difference that everyone who noted that fact missed is that prosecutors typically don't have the power to hold a defendant anyway if they don't have the evidence to go forward to trial. In this case, the Obama administration would have continued to hold these guys regardless of whether they had the evidence to convict in federal court or not. In other words, the trial is not a necessary condition for the continued detention of these defendants. They would be held with or without a trial. That makes the trial, by definition, one for show rather than administering justice.