Last week, former OLC deputy John Yoo argued in the WSJ that the decision to try Khalid Sheikh Mohammed in New York was a major mistake.
Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.
Whether a jury ultimately convicts KSM and his fellows, or sentences them to death, is beside the point. The treatment of the 9/11 attacks as a criminal matter rather than as an act of war will cripple American efforts to fight terrorism. It is in effect a declaration that this nation is no longer at war.
On Friday, two other former Bush Administration Justice Department officials, former Deputy Attorney General James Comey and former OLC head Jack Goldsmith, took a decidedly different tack in the Washington Post.
Reasonable minds can disagree about Attorney General Eric Holder’s decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials. . . .
Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including “shoe bomber” Richard Reid; al-Qaeda agent Jose Padilla; “American Taliban” John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.
In terrorist trials over the past 15 years, federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom. . . .
Anderson says:
I don’t understand how the Andrew McCarthys will argue in good faith against the team of Comey and Goldsmith, but I have little doubt they will argue in some faith or other.
November 22, 2009, 4:59 pmredc1c4 says:
he’s an illegal combatant…. summary court martial, followed by immediate execution by firing squad.
anything else is political Bravo Sierra, and the court martial is still more due process under the Geneva Convention than the enemy gives our GI’s when they capture them.
November 22, 2009, 5:25 pmGene Madison says:
Regardless of what the decision is on whatever subject.. the opposition is there to help promote partisan divides so that way enough uninterested people should help to prevent the correct questions from being asked. It isn’t that they’re complete opposites, on the contrary… they both want the same thing, ignorant citizens to dumb to see they’re being played.
November 22, 2009, 5:40 pmMalvolio says:
I keep hearing things like that and I wish people would stop it.
It’s an utterly meaningless point: what is the significance of how people who are guilty have in determining whether or not some particular guy is guilty?
Say Redc1c4 were accused of killing a cop. Would he not be entitled to a trial, on the grounds that cop-killers are really, really bad?
The heinousness of the crime determines only the severity of the sentence, not the rights of the accused.
(This is not to say I’m in favor of civilian trials, just that the “kill ‘em all, let Allah sort it out” mentality needs to be revised.)
November 22, 2009, 6:23 pmAnderson says:
I am always surprised, for some reason, by how many people get off on the notion of “summary court martial, followed by immediate execution.”
Like that’s tough or something.
The notion of an “illegal combatant” derives from the laws of war, and I have yet to see an actual citation to any such law that allows such a summary proceeding, not on the battlefield, but as regards someone we’ve held prisoner in absolute security for a period of years.
And, since it needs to be spelled out, contempt for law, for human rights, for basic decency, is what makes the bad guys bad. Why should we imitate them? Do we now admire al-Qaeda?
November 22, 2009, 6:40 pmThe Watcher says:
Anderson, assuming you are being serious, look to the orders of the American occupation forces in Germany. Werwolfs were given a summary hearing in front of a commissioned officer and then shot.
It was all quite legal then.
Back then US forces were seen as somewhat weak, where Commonwealth forces used hostages which they would execute after unlawful combatant attacks, and Soviet forces used arty strikes against occupied towns in the area of unlawful combatant attacks.
November 22, 2009, 6:45 pmAnderson says:
Werwolfs were given a summary hearing in front of a commissioned officer and then shot.
The 1949 Geneva Conventions were not in place, and there is a difference between nabbing an insurgent and executing him after a drumhead court-martial, vs. holding him for several years and *then* giving him a drumhead court-martial.
Military exigency is the sole justification for the former case, and does not exist in the latter case.
Also, the Wiki article on Werwolf is interesting for two points:
(1) The summary executions were indeed illegal; and
(2) The would-be Werwolves were actually pitifully ineffective but “its value as propaganda far outweighed its actual achievements.” Sorta like al-Qaeda.
November 22, 2009, 6:55 pmAnderson says:
Oh, and since one often hears al-Qaeda terrorists compared to spies (who wear no uniform), see this from the 1907 Hague Conventions:
A spy taken in the act shall not be punished without previous trial.
November 22, 2009, 7:06 pmrpt says:
Mr. Yoo of course has a certain dog in this fight.
November 22, 2009, 7:20 pmThe Drill SGT says:
While I agree with the spirit, in practice the Military Commissions put in place by a Democratic Congress and signed into law by Bush II seem like the way to go at this point.
A Federal Court trial is just going to be a propaganda bonanza for both AQ and Obama, giving up our sources and methods to the enemy and putting Bush II on trial rather than KSM.
After this trial, regardless of the outcome we are going to be less safe, because:
1. AQ knows more about what methods we use and who we have compromised.
2. In order to fit KSM into a Federal court, the Judge and the DoJ are going to make legal compromises that will impact negatively the criminal justice system for the rest of us.
November 22, 2009, 7:34 pmpc says:
The Drill SGT says:
Former Deputy Attorney General James Comey and former OLC head Jack Goldsmith says:
November 22, 2009, 7:48 pmHugh says:
I wonder how much of the 1949 Geneva Conventions and other applicable international law was negotiated in bad faith by parties who had no intention of ever following them, but expected the US and other western democracies to make an effort to follow them.
If you have no intention of ever following a law, it is in your interest to make the law so unreasonable and impossible to comply with that everyone is in violation. That way, if someone accuses you of violating it, you can argue that everyone violates the law so it should not matter.
Of course, there are minor violations and major violations. The US and other western democracies get hung up because they commit minor violations and there are lots of critics eager to point out those violations. Meanwhile, the major violations going on in other countries are ignored.
November 22, 2009, 7:53 pmOff Kilter says:
“I wonder how much of the 1949 Geneva Conventions and other applicable international law was negotiated in bad faith by parties who had no intention of ever following them, but expected the US and other western democracies to make an effort to follow them.”
Boy, did we trick THEM, or what?
November 22, 2009, 8:03 pmrpt says:
Sgt.:
How many federal criminal cases have you tried or participated? This is not how it works in the federal system: no tv. no cameras. no extemporanous speeches by defendants. no in court live-blogging. And don’t tell me about O.J.
November 22, 2009, 8:20 pmPersonFromPorlock says:
Well, to be fair, the nation never has been at war. The executive branch has been – when it suited its purposes to be; the Congress when there was face time in it; and the Court when it couldn’t duck the issue: but, basically, no. It’s fascinating how profoundly unserious American government has become.
November 22, 2009, 8:22 pmLeo Marvin says:
Holder – jihadi
November 22, 2009, 8:26 pmObama – illegal immigrant
Comey – Marxist
Goldsmith – Maoist
Posner – PETA member
Adler – Prius owner
geokstr says:
Channeling SirCastro, but without his ever-present view from the left:
November 22, 2009, 8:38 pmmatt c says:
none of those people were caught on foreign battlefield, but john walker lindh, who also happened to be a us citizen. non-citizen battlefield combatants ought not be given constitutional rights or civilian trials, for all those reasons already touched on. the 1993 wtc bombers too were caught stateside.
November 22, 2009, 8:45 pmLeo Marvin says:
Holder – traitor
November 22, 2009, 9:04 pmPosner – Maoist
Comey – jihadi
Goldsmith – left handed
Adler – Prius owner
glasnost says:
The relative silence on this thread implies that most of the partisan / protofascist / pscyhopaths aren’t really up for arguing with Jack Goldsmith and James Comey, which means that, for all intents and purposes, unless and until some front-pager attempts to whack this back down, the noncrazy people have won. Hoorah!
November 22, 2009, 10:32 pmRicardo says:
Nor, for that matter, was KSM. The details are hazy but he was apparently apprehended by the Pakistani ISI either in Karachi or Rawalpindi. Unless you stretch the definition of battlefield to include the entire nation of Pakistan, he is not a battlefield detainee.
November 22, 2009, 11:06 pmSG says:
I still don’t find the argument even remotely convincing – it’s practically incoherent. Can someone reconcile these two assertions?
and
Well, which is it? Are commissions problematic because they enable complaints of kangaroos courts and victor’s justice or are they a good choice because the offer marginal advantages to the government? It would seem that if they are illegitimate (or broadly perceived as such), it shouldn’t matter what advantages they offer. Conversely, if military commissions are sufficiently legitimate to be usable and they offer even marginal advantages to the government, then why would the government choose not to take advantage of them for the “trial of the century”? And where is the legitimacy in a process that only gives trials to those who are “obviously guilty”, while shunting off those who are presumably not obviously guilty to a process of uncertain legitimacy? Since when did “damned if you do and damned if you don’t” become a synonym for legitimacy?
And even they acknowledge, in defense of Obama’s decision, that the decision making process is functionally equivalent to Bush’s ad hoc process. The Obama administration is picking and choosing venues based on which they feel gives them the greatest advantage (An aside: do all those pointing to this op-ed as a defense of Obama now defend the Bush administration for when they did this? If not, why not?). The question as to what advantages Obama sees in bringing KSM before an Article III court in NYC remains open.
And while Comey and Goldsmith did allude to an advantage to criminal trials (a military commission previously gave a lesser sentence than a criminal court might have), I don’t recall Holder ever making this argument in his Congressional testimony. Did I miss it or did this “advantage” just slip Holder’s mind?
November 22, 2009, 11:12 pmrpt says:
Assuming the worst of the fears of the Cheney-ites were to come true at the trial, what information embarrassing to the US would be disclosed?
November 22, 2009, 11:12 pmSG says:
Assuming the worst of the fears of the Cheney-ites were to come true at the trial, what information embarrassing to the US would be disclosed?
I’m not a Cheney-ite (whatever that is), but my concern is that the KSM trial is being used as cover to put the Bush admin on trial – either (or both) as an expression of legitimate outrage over what was done or as a way to keep the base fired up over Bush. I’m sure Dems would prefer to run against Bush in 2010/2012 then run with their actual record of governance. What’s the unemployment rate and current federal deficit at now anyways?
Which is not to say that the Bush administration shouldn’t be put on trial for what they did (that’s a separate discussion), but if that’s what the Obama administration feels needs to be done then they should do it directly. I think using the person who planned the murder of 3,000 of my fellow citizens as a pawn to attack political enemies is repulsive.
November 22, 2009, 11:31 pmRicardo says:
Functionally equivalent to Bush’s ad hoc process in the aftermath of the Military Commissions Act of 2006 and the series of Supreme Court decisions that put many legal checks on the President’s ability to detain and punish those designated as enemy combatants. These were mostly measures and safeguards that Yoo, Cheney, Addington and other Administration officials fought very hard against while they were being proposed and debated.
November 23, 2009, 12:14 amJeff Hall says:
Aw, shucks. Hanging Nazi partisans was against the law? I’m ashamed to admit that my heart stubbornly declines to bleed for them.
November 23, 2009, 3:15 amRicardo says:
Even if your enemies are completely uncivilized there is still a big practical downside to summary execution of prisoners of war. Namely, that they are going to be much more willing to fight to the death since they know that surrendering will not do them any good. There is evidence that this part of the reason (not the only reason, of course) so many Germans and Japanese refused to surrender and instead fought until the very end. In the case of Japan, culture played a big role as well but knowing that if you surrender you will be shot and your dead body will be mutilated in unthinkable ways is hardly an enticement to surrender.
Germans were more likely to surrender to Brits or Americans than to Russians — the reasons ought to be obvious. Even then, because of well-publicized incidents when Brits and Americans did actually kill prisoners, both countries had to spend a lot of effort on propaganda to convince the enemy that these were aberrations and that they would be treated well if they laid down their weapons. It seems likely that war crimes committed by the Allies cost the lives of their own soldiers in the end as it may have caused the Axis soldiers to fight that much harder to avoid being captured.
November 23, 2009, 4:06 amD.O. says:
SG, supposedly civillian court (at least in abstract) would have larger false negative (acquital of a guilty person) to false positive (condemning of an innocent) ratio. If only some cases are moved to the civillian court the ratio will be larger still. In other words, if government will convict KSM in civillian court, we might be more sure that he is what they claim he is. Second, whatever alterior motives Holder and Obama have, they should not be forced to use military commissions only to make nice to Bush et al.
November 23, 2009, 4:31 amGene Madison says:
Interesting points. While the power of the Federal Government in Military action is limited to defense from invasion, and a declaration of war (in which harm has been committed against the United States by a foreign state, in which congress passes a war rant/declaration, and since no Justice system exists in order to obtain Justice… A last resort to military action when all attempts to reconcile have failed.
Because “Al-Qaeda” was assumed to be behind the attacks (Evidence linking Bin Laden does not exist according to FBI) and because we couldn’t produce evidence to provide the Taliban so they could be sure he was responsible… The first act of war was not 9/11, but U.S. Attack and invasion.
Without a declaration of war, seems as if a court would need to issue a warrant, no?
What would happen if a warrant wasn’t issued, and upon search and seizure operation, people fire at an agent… They weren’t guilty of anything except shooting the agent who broke into their homes. If the courts weren’t established when the crime occurred, then it’s ex post facto, no?
Without a trial, we don’t know the detainees guilt or innocence. If we’re supposedly at war to protect our ways of life, shouldn’t we be the example we wish to see in others?
IMO, these people followed our lead… As far as many of the civilians and victims go, we struck first.
If we can only obtain Justice by committing Injustices, then we should rethink about what exactly we’re fighting for.
All accused persons have a right to a fair Trial, else the Government is tyranical/oligarchial.
If Bush II goes to trial, it shouldn’t be a problem, so long as he didn’t violate the laws.
Personally, I hope they do, and the same is true for all presidents or otherwise that act above the rule of law.
November 23, 2009, 5:36 amGene Madison says:
Actually, I don’t see a big difference between the trial opposition, and the detainees in Germany during WWII. How many who oppose would agree that they were justified then?
November 23, 2009, 5:52 ammattc says:
saying pakistan is not the battlefield is like saying that paris circa 1942 was not a battlefield.
November 23, 2009, 10:07 amAnderson says:
Well, Matt, Paris circa 1942 wasn’t a battlefield, was it? What armies were fighting there that year?
Leaving aside that Pakistan, unlike northern France, was not occupied by an enemy army.
November 23, 2009, 10:34 amvolokh accomplice says:
Yoo-Hoo! The way Adler framed this post, it seemed like Comey and Goldsmith strongly refuted Yoo’s argument. In fact, Yoo concluded by noting that Moussaoui was tried in civilian court. They even tried to spin it by saying that civilian court was “used” to put him away, but Yoo noted that prosecutors were struggling with the case, and were fortunate that Moussaoi pled guilty. Yoo argued that the Moussaoui trial serves as a warning to take a different approach in prosecution. That is not refuted by simply noting that other mistakes have been made.
Also, consider this: Lindh, Reid, KSM – which one of these is not like the other? Which one of these doesn’t belong? If you cannot decide ask, which one of these has been waterboarded? US forces have already made the determination that KSM is a different kind of terrorist, why are Obama and Holder second guessing?
November 23, 2009, 10:39 amAnderson says:
US forces have already made the determination that KSM is a different kind of terrorist, why are Obama and Holder second guessing?
What does that “determination” (by “U.S. forces,” = “Cheney”?) have to do with where and how KSM is tried for his crimes?
November 23, 2009, 10:49 ambailey says:
McCarthy, unlike the others, actually tried one of the most important of these cases. Wouldn’t some of his reflections matters as opposed to those of Justice brass? We know that intelligence was disclosed in that trial that helped overseas terror. Even after conviction, the Blind Sheikh’s lawyers were assisting him actually commit terror. But, I guess the posters here know so much more than McCarthy.
November 23, 2009, 11:18 amGene Madison says:
If this were a movie, I’d guess the waterboarding never happened, there were no tapes, but a destruction of tapes make it more believable. Later, we find out they were CIA agents ‘captured’ to obtain intelligence, and for protection, then set free by courts because of inhumane treatment… Returning back to Afghanistan to resume intelligence operations.
November 23, 2009, 11:23 amCharleyCarp says:
I think fear of putting the former Administration on trial, or degeneration into a circus are highly overrated. Up to now, the only hints of circus have come from alumni of the recent administration.
More important, sending the 9/11 plotters to federal court makes sense for another reason. The Commissions have never operated under their new rules, and barely operated under their old rules. There are a large number of legal issues that have never been faced in the commission context, or only in the first instance. Commission judges — operating under the older rules — were less favorable to the government than many had expected. I suppose they would rather be Spencer Tracey than Burt Lancaster. In any event, the S.D.N.Y. doesn’t have to reinvent the rules of evidence, of access, of confrontation and all the rest.
November 23, 2009, 1:10 pmBob from Ohio says:
Goldsmith and especially Comey are still just smarting from consistently losing the internal arguments when they were at Justice. Goldsmith bailed out pretty quickly, if I recall.
November 23, 2009, 1:20 pmAnderson says:
Goldsmith and especially Comey are still just smarting from consistently losing the internal arguments when they were at Justice. Goldsmith bailed out pretty quickly, if I recall.
Which arguments did they lose? Comey got the eavesdropping reconsidered; Goldsmith got Yoo’s memos withdrawn.
November 23, 2009, 1:21 pmOren says:
Having sympathy for, and giving due process to, a defendant are entirely distinct. I have no love for Adolf Eichmann, but I’m glad he was tried before he was hung.
November 23, 2009, 1:22 pmbailey says:
Why? I can’t quite understand why it would have made a difference if Eichmann was tried and executed a few months later versus a two week tribunal and immediate execution? We certainly didn’t do it in any previous wars. We are so enlightened now that you get extra rights if you kill civilians. Quite an advance, eh?
November 23, 2009, 1:31 pmGene Madison says:
One of the principles carried over from colonial days was innocent until proven Guilty, as decided by a jury of your peers. It was to give the accused the opportunity to face the evidence, and provide their side of the story.
If we abandon our Principles, then the enemy wins, whomever they may be.
November 23, 2009, 2:08 pmOren says:
As I understand it, a soldier that kills other soldiers has the right to be let free when the war ends, so I think that hanging KSM is hardly “extra”.
November 23, 2009, 2:45 pmSG says:
supposedly civillian court (at least in abstract) would have larger false negative (acquital of a guilty person) to false positive (condemning of an innocent) ratio. If only some cases are moved to the civillian court the ratio will be larger still. In other words, if government will convict KSM in civillian court, we might be more sure that he is what they claim he is. Second, whatever alterior motives Holder and Obama have, they should not be forced to use military commissions only to make nice to Bush
If the overriding concern is the perceived legitimacy of the outcome, then there would seem to be no reason for using military commissions. But since we’re going to use military commissions for some, we have to believe that military commissions are good enough. So if they are good enough, why would you want to bring the “worst of the worst” (to borrow a phrase) before the court that’s got a higher likelihood of false negatives?
I absolutely agree with your last sentence. I don’t think that the Obama administration is required to use military commissions – not to make nice to Bush or for any other reason. But neither should military commissions be rejected just for the cases that maximize the potential to be nasty to Bush.
November 23, 2009, 2:52 pmspitball1999 says:
I was actually disappointed by how unconvincing Comey’s and Goldsmith’s arguments were. It seemed like they just mailed it in. Other commentators have engaged in much more thoughtful analysis.
(1) They underestimate the dangers that sensitive information helpful to Al Qaeda may be inadvertently released; they just dismiss it by saying that courts have gained “experience” in prosecuting cases over the past 15 years. But the 1990′s SDNY prosecution of the 1993 WTC bombing and embassy bombings showed that even non-top secret information (e.g., list of unindicted conspirators) tipped off Bin Laden. Perhaps Comey and Goldsmith, in the end, are right, but their analysis is so glib and cursory, especially for someone of their vintage.
(2) They also try to downplay the difficulties of the Moussaoui trial (e.g., the possible dismissal of the indictment). They somehow fail to mention that we were spared a potential fiasco in large part because he surprisingly plead guilty, and not because the civilian courts were suited to try someone like him.
(3) They claim that a civilian trial is beneficial because KSM won’t be able to complain about a “kangaroo court.” Really? And the President of the United States and the Attorney General publicly declaring that he will be found guilty and executed (“failure is not an option”), and stating that he won’t be released in the U.S. if acquitted doesn’t seem like “victor’s justice”? (And if military commissions are likely to be deemed a “kangaroo court,” why are they being used against other AQ operatives?).
(4) They claim that trying KSM in NYC won’t make the city a bigger target than before. To quote the 9/11 Commission Report, they lack the proper “imagination.” Al Qaeda surely has been plotting another attack on U.S. soil, but they don’t have the resources to pull of a large-scale terrorist attack (thanks to counter-terrorism efforts and killing of top AQ operatives). Some reports have suggested that AQ can commit smaller terrorist acts, but wants to engineer another fantastic attack; it would be a sign of weakness to blow up a few stores in Manhattan Mall on a random day after they succeeded in destroying the WTC towers. But detonating bombs on a NYC subway the day that the trial of KSM begins would be a huge PR and symbolic coup for Al Qaeda. So I think there is some increase in risk for NYC.
November 23, 2009, 5:37 pmRicardo says:
You’ve never presented any evidence that that is the case. If DOJ is convinced they can get a conviction in civilian court without compromising classified information, there is no reason why they should not do so. If they are less confident — either because some of their evidence is inadmissible or classified — then military commissions may make more sense. There is nothing hypocritical about wanting to keep the number of cases before military commission to a minimum as that means less of a risk coming from appeals. Last time I checked, DOJ has over a 90% conviction rate while the military commissions are still largely untested.
November 23, 2009, 9:23 pmRichard Aubrey says:
Fenstermaker says it’s going to be a show, a platform.
November 23, 2009, 10:13 pmThe attorneys will no doubt be emoting on the courthouse steps with the terrs’ talking points in hand.
I suppose that’s better than OJing the whole damned thing, but it’s going to be a platform, as well as a show trial.
Ryan Waxx says:
After reading Goldsmith and Comey’s positions, I can at least hope I’m wrong about this being the next O.J. case, but orchestrated as a political weapon against the REAL enemies of America (I.E. Republicans).
There’s nothing left to say but that we’ll see how it turns out. I hope they’re right… but I suspect that certain folks will be working hard to make sure that this resembles O.J. more than McVeigh.
November 23, 2009, 10:40 pmThe Volokh Conspiracy » Blog Archive » Court Clerk-in-Chief says:
[...] former Bush Justice Department offiicals James Comey and Jack Goldsmith, I think some of the criticisms of the Obama Administration’s decision to try KSM in a civilian [...]
February 13, 2010, 11:25 am