First, it seems much of the government's case rests on confessions and "evidence" obtained overseas.
On the confessions: Once in custody, KSM apparently succumbed to 'waterboarding' and other 'enhanced interrogation techniques,' then spilled his guts.
Upon his capture, was he given his "Miranda Rights"?
If not, everything he said from the time of his capture will be thrown out, since he was not afforded his "constitutional right" to representation.
Second, the entire 'enhanced interrogation techniques' will damn the confessions to inadmissibilty.
As the Washington Post reported earlier this year:
On the "evidence" obtained: Were there search warrants issued? [Whether here or abroad?] If not, then Obama and Holder have another huge problem.
Any plan for terrorism trials in federal courthouses would face extraordinary difficulties, lawyers say. Much of the evidence is classified, and key witnesses are reluctant to testify. Government secrets can be spilled. Litigation can be expensive and stretch for years. Security is a nightmare.
The Guantanamo detainees pose hurdles on a scale rarely seen. They were arrested mostly in Afghanistan and were interrogated there and in Cuba by soldiers and agents more focused on stopping attacks than reading the detainees their rights. Much of the evidence is expected to come from their own statements, and those will be thrown out -- along with leads derived from the interrogations -- if the detainees were coerced.
Lastly, can any defendent (whether citizen or not) have a "fair" trial when the President of the United States (once the most powerful person in the world) expresses confidence that the "presumed innocent until proven guilty" defendent is going to be executed when he's found guilty?
The defendent's attorneys are going to have a field day going to trial in New York. It will be easy for them to make the case that the government's entire case should be thrown out.
When that happens, as the title of this post asks: What happens when the terrorists go free?
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