The title is actually from Nick Baumann’s article at Mother Jones.
On Tuesday morning, Sens. Jim Webb (D-Va.) and Blanche Lincoln (D-Ark.) teamed up with Graham for a press conference to announce a bill that would block funding for Obama’s proposal to try 9/11 co-conspirators, including Khalid Sheikh Mohamed, in civilian courts.
By expressing full support for Graham’s measure, Webb and Lincoln are essentially moving into open revolt against the White House’s detainee policy. Lincoln, who faces a tough reelection fight in Arkansas this year, said she would be foolish if she didn’t listen to her constituents and oppose the 9/11 trials. Webb insisted he was not opposing the trials because they could be held in his home state of Virginia if New York does not prove to be a feasible venue. “I wrote a column on 9/12″ calling the conspirators war criminals, he reminded reporters, implying that he has always prefered the detainees to be tried in a military setting.
After the press conference, Graham didn’t refute a suggestion from reporters that he also has the votes of Arkansas’ Mark Pryor and Washington’s Maria Cantwell. Pryor, Cantwell, and all 40 Republicans joined Webb and Lincoln in supporting a similar measure pushed by Graham in early November. The Senate rejected that measure, 55-45. But Graham said he was sure his bill would pass “overwhelmingly” this time around if it ever came up for a vote.
A couple of thoughts on this. First, as Baumann says, it’s not just a Gitmo rebellion, at least, not in the sense of merely saying something about where a trial will be held – New York, Guantanamo, or anywhere else. It is, more importantly, a question of whether the trial of KSM and potentially others will be civilian, in the Federal courts, or by military commission.
Second, one of the ironies of having legislators potentially act in these ways is that it means that Congress might at last be getting involved in something that it has wanted to avoid getting involved with for years and years. A lot of people have pointed out that Congress seems never to want to have to put itself on the line in this national security stuff – Jack Goldsmith, Ben Wittes, Stuart Taylor, me – have all said this one way or another over the years. Only the President, as Jack pointed out in his book, has the ability to make Congress step up to the plate, but the Bush administration (in one of its deepest failures of institutional process) never wanted to do it and, today, neither does the Obama administration. So it is somewhat ironic to see at least some members wanting to take over a question of fundamental war on terror policy now.
(I should add, too, that if you read to the end of the Baumann’s article, you’ll see that he doesn’t actually share many views with me; I don’t want to impute any of my views to him. As regular readers know, among other things, I favor a national security court, as well as an administrative detention arrangement established by Congress but not under military jurisdiction. And many other equally un-Mother Jonesish things.)
But now, one last thought. There are a number of attorneys working for the Obama administration, one way or another connected to detainee policy, Guantanamo, interrogations, all this kind of stuff. Most at DOJ, I suppose, but others at other agencies. Numbers came from academic positions, or think tanks or advocacy groups – but many with of course very strong views on all the many things they saw as having gone so wrong with Bush administration policy. And the promise of fixing many things, if not everything.
Policy has not changed all that much, however. Partly policy has not changed within the administration – at least not big pieces such as Guantanamo closing, the possibility of long term detention of people who will not be charged or tried, etc. And now at least the possibility of Congress changing even big pieces that the administration did change, such as the venue for the KSM trial. I wonder whether some of those attorneys will wind up leaving the administration.
If you think about it from their career and personal perspectives, you might think that, well, I’ve been here, done that, gave it my best shot, got whatever resume value there is to having served in the administration, and now … things don’t appear to be on a path to change in these areas all that much. Don’t I wind up simply hurting myself back in my home space of the academy, or NGOs, etc.? Hanging around having to defend policies that I don’t like and that it doesn’t appear will change? Do I really want to be part of a walkback on KSM, for example, if that happened? Wouldn’t I do better to leave – and then find ways to attack the policies from the outside? I have no idea, except for a couple of conversations in passing, but they made me wonder.
Steve says:
Wow, a 3-way separation of powers dispute!
February 3, 2010, 9:47 pmArthurKirkland says:
Why wasn’t KSM convicted a long time ago?
I mean, other than the incompetence.
February 3, 2010, 9:57 pmHoward Gilbert says:
There is a third alternative. If you do not want a civilian trial, but you regard the Military Commission as suspect because of its special rules of evidence, then you can try KSM in a regular Court Martial. If you believe you have the evidence for a civilian trial, then there would be no problems with hearsay or protecting sources of intelligence that presumably represent the difference between the Military Commission (for unlawful enemy combatants) and a regular Court Martial (required in the MCA for lawful enemy combatants).
February 3, 2010, 10:03 pmAnonsters says:
Go to the panel next Tuesday at WCL on the Obama/Holder DOJ’s first year and ask the DAG (Ogden) who is retiring in the next few days, after being there for one year.
February 3, 2010, 10:11 pmBob from Ohio says:
Because we wanted intelligence info, not a show trial.
February 3, 2010, 10:29 pmBoss says:
Not hanging around having to defend policies that I don’t like, that’s the point of believing in things. That’s all that morality is. I wash myself clean. I step away from these things. I say, “That isn’t me.” Everyone with strong views is saying, in other words, that they’re clean. They’re untouched by these things.
February 3, 2010, 10:31 pmAnonsters says:
Yet they teach lawyers that they’re advocates, that they have a professional responsibility to zealously represent their clients, blah blah blah.
Now if only they taught lawyers integrity….
(And I don’t mean Dworkin.)
February 3, 2010, 10:48 pmBoss says:
Can you be an advocate and a philosopher, both? A politician and a penitent? With responsibilities and a concern for your soul? What I see is a lot of monks defending their souls and trying to square the circle by just asserting, against the evidence, that what’s best for themselves is good policy too. That there are practical advantages to being true to ourselves.
February 3, 2010, 11:04 pmMark Field says:
Ok, maybe that explains the first 6 months or so, maybe even the first year of captivity. What about the rest of the time?
February 3, 2010, 11:29 pmBoss says:
The show trial should have started after six months? What about another option, no show trial at all? The show trial is an interruption. What is it for? Before it, he was in captivity. After it, he’ll return. Actually, as the president said, he’ll get put to death. Why does the president want to kill him? He’s in captivity. Shouldn’t that be enough? Or is it important to punish a man? Is it more satisfying, to the president and those who reason like him, to punish men for their sins? Would that make us clean? We have integrity, we say. We execute the soldiers we capture in wars.
February 3, 2010, 11:42 pmSteve says:
That “show trial” talking point is about as mindless as they come. Gee, I guess that Scott Roeder guy got a show trial, since everyone knew he did it. I guess going through the process hurt us somehow.
February 4, 2010, 12:12 amCornellian says:
If you do not want a civilian trial, but you regard the Military Commission as suspect because of its special rules of evidence, then you can try KSM in a regular Court Martial.
If the Federal Rules of Evidence were your concern, why not simply enact special rules of evidence that apply in regular District Court to those kinds of trials?
February 4, 2010, 12:15 amiconoclast says:
KSM is not a soldier and does not deserve anymore the benefits of being a soldier than he does the benefits of being a resident of the USA.
As for executing KSM, besides being just retribution it is one more step on eliminating all jihadists.
February 4, 2010, 2:58 amHoward Gilbert says:
For the trial to be regarded as fair, it has to be a pre existing system with rules we use for our own people. In the absence of Military Commissions, Court Martial is also used for civilian aliens accused of serious crimes and who were captured in a war zone (where US courts do not have jurisdiction and local courts are not appropriate). KSM committed his crimes in Afghanistan.
February 4, 2010, 4:17 amRichard Aubrey says:
It’s a show trial because the sentence has been announced in advance. See Obama and Holder on the subject.
February 4, 2010, 7:48 amRoeder, however clear his crime, was not the subject of pre-trial sentencing. Nobody said he’d be executed if found not guilty.
rbj says:
Ex Post Facto? This would be a criminal trial, and I do think even rules of evidence are subject to EPF constraints, though sentencing is not — IIRC, I could be wrong though.
To me, the real problem is that if you are going to mess around with RoE or continuing to hold someone who isn’t convicted in this case, if treated as a regular criminal trial, then that sets a dangerous precedent for all criminal matters.
February 4, 2010, 8:30 amMark Field says:
I don’t support a show trial for KSM or anyone else. I do support a fair trial. Even assuming the need to interrogate him for intelligence purposes, there’s been plenty of time to give him a fair trial by now.
February 4, 2010, 10:01 amAdam J says:
Richard Aubrey- “It’s a show trial because the sentence has been announced in advance. See Obama and Holder on the subject.” Except they don’t decide the sentence in the trial…
February 4, 2010, 10:05 amJust Dropping By says:
It’s a show trial because the sentence has been announced in advance. See Obama and Holder on the subject.
So it’s a “show trial” every time a politically grandstanding mayor or D.A. announces at a press conference before a suspect is tried that the suspect “will be convicted”?
February 4, 2010, 10:22 ambishop says:
I have seen the idea of a national security court bandied about, by Phillip Bobbitt, and
February 4, 2010, 10:32 amBenjamin Wittes, among others. But I wonder if the Courts could ignore the long history
of military commissions, going back to 1775, in history and precedent, who is to say that
this plan will pass muster. A courtmartial is for American military personnel, to grant
that to terrorist, is to give them that status,
Bob from Ohio says:
What do you think would happen if KSM was, God forbid, acquited?
Do you think he would get in a cab and drive away? Walk to the subway?
He would go back to military custody for life.
Trials where the defendant loses either way are show trials.
President Bush wasn’t really interested in trying terrorists already in custody. The military commission process was just to satisfy the mewing of critics. When we got around to killing KSM, we would. No hurry.
February 4, 2010, 10:44 amRichard Aubrey says:
just
February 4, 2010, 11:06 amI don’t think the grandstanders say the guy will be executed even if acquitted. Or confined for life even if acquitted.
Nice try, though.
Or, no. It wasn’t.
gregorya57 says:
I don’t think a “show trial” is appropriate, but “show executions” could have far-ranging beneficial effects.
It would certainly brighten MY day.
February 4, 2010, 11:39 amBanjo says:
The ACLU is always looking for lawyers. It looks like a match made in heaven.
February 4, 2010, 11:47 amDonP. says:
“We execute the soldiers we capture in wars.”
That news will come as a surprise to thousands of military veterans that have earned the Combat Infantry Badge.
One of the things they teach you in even basic training is the proper handling of enemy prisoners and combatants. They explain, in the blunt and certain terms only a DI or DS can administer, what you are required and allowed to do and what you may not do with prisoners, under penalty of courts martial and the promise of a lengthy stay in places like Leavenworth.
February 4, 2010, 12:40 pmA. Dawson says:
Ok… stupid question here…
Can someone explain to me how foreign nationals committing / conspiring malevolent acts in FOREIGN countries can be tried in US civillian courts for breaking a US law?
It seems to me that these people were acting outside the jurisdiction of the US and therefore not technically breaking any US laws.
Can someone explain this to me?
February 4, 2010, 12:55 pmHoward Gilbert says:
If Congress prevents KSM from entering the US for a civilian trial, then under current law it is not clear that a Military Commission is necessarily the other choice. KSM was a high ranking officer in the al Qaeda/Taiban army in Afghanistan. The original MCA defined all members of al Qaeda or the Taliban army as “unlawful enemy combatants”, the classification necessary for a Commission to have jurisdiction. However, last year that definition was replaced. Now a Military Commission would have to find KSM to be an unlawful enemy combatant based on the laws of war. The problem is that whatever KSM did happened before 9/11 when no US forces were in Afghanistan.
Unlike other detainees, KSM has never claimed in his CSRT or in any other setting that he was anything other than a soldier. The Germans in command of the concentration camps, the Japanese general in command of the Bataan Death March, they were all lawful enemy combatants, although they were also war criminals and mass murders. In the past lawful enemy combatants were tried in Military Commissions, but in the current version of the MCA, a Commission can only try an unlawful enemy combatant, while lawful enemy combatants must be tried by a Court Martial.
If you bring KSM before a Military Commission, the first step will be to decide if he is an unlawful combatant over whom the Commission has jurisdiction. The first time around, Congress defined him as an unlawful enemy combatant and that Commission accepted the decision Congress made. Today, the law has changed and they have to make the decision themselves. There is no sound legal basis to deny him lawful combatant status for actions made in Afghanistan when no US forces were present, and military officers will be inclined to resolve any uncertainty in favor of “lawful” status. Once they make (what I believe to be) the inevitable decision that they have no jurisdiction under current law, then an ordinary Court Martial will be the only remaining option (unless Congress changes the law back).
February 4, 2010, 1:16 pmAnon says:
“We execute the soldiers we capture in wars.”
A non-state adversary, wearing no uniform, respecting no flag, and under no formal chain of command, is not a soldier.
The basis for modern military conduct is founded upon the principle that it is right and proper to execute banditti – non-uniformed belligerents captured in war. This is principally an enforcement mechanism designed to compel compliance with the law of armed conflict. One can argue relative deterrent effects, especially with regard to radicalized ideological adversaries, but weakening the principle weakens other vital protections against war crimes (intentional targeting of non-combatants, use of non-combatants as human shields, etc.)
February 4, 2010, 1:27 pmBob says:
I wondered if this could happen today:
http://www.fbi.gov/libref/historic/famcases/nazi/nazi.htm
Or would they get a public case with the media circus?
February 4, 2010, 1:34 pmKirk Parker says:
I’d certainly support professional sanctions against any D.A. that did this.
As far as mayors go, in most places they’re not part of the court system. I do recall one of our mayors (Karen Vialle) being roundly denounced (and rightly so) for criticizing the verdict in a high-profile murder case (where the shooter successfully argued self-defense.)
February 4, 2010, 1:56 pmDavidN says:
A. Dawson:
We came up with the idea of trying foreign nationals who commit crimes abroad, if the victims are U.S. citizens, about 15-20 years ago. There were several cases where drug lords from South of the border killed individuals under circumstances that were outrageous, and it was obvious they’d bribed local officials. In one instance, there was a particularly outrageous case: a drug lord in Mexico kidnapped a U.S. D.E.A. agent stationed in Mexico with the mission of interdicting drug shipments. The D.E.A. agent was tortured over a period of several days, with his screams heard for some distance around. Everyone around the drug lord was terrified of him; no one would report him to the local police, who he had bribed anyway. The result was we got custody of the drug lord and his minions, and tried and convicted them in a U.S. court, with the tacit (but quiet) acquiescence of the Mexican government. After that, it happened semi-regularly: Manuel Noriega never committed a crime in the U.S., but was convicted and sentenced to a U.S. prison.
It’s not something we and we alone do. Remember that Belgium, for instance, wanted to try Henry Kissinger for war crimes for a while, and actually arrested him briefly. No Belgians were victims of whatever Secretary Kissinger was accused of doing: Belgian politicians merely think his behavior very objectionable.
So if we capture this KSM guy, and we want, we can try him in a military or a civilian court. I’m not entirely sure why we don’t set up some sort of Nuremburg trial and try the idiot for “Crimes against Humanity”.
February 4, 2010, 3:50 pmBuddy Hinton says:
How does everybody know he is guilty? I have never figured that out.
February 4, 2010, 3:59 pmA. Dawson says:
I can understand that we might want to respond to the egregious actions of others abroad. But trying them in civilian courts in the US doesn’t make logical sense to me. Its sort of like the trial of Saddam Hussein… when you’re dictator… you aren’t technically breaking any laws. What logical basis is there to put the dictator on trial? Simply execute him and move on. (re: Saddam Hussein… the lives of many people involved in the trial would have been saved if they dispatched him expeditiously.) One has to simply decide if military or para-military action is warranted, and simply do it. I wouldn’t necessarily advocate that this sort action is warranted in all cases, but there is no sense in trying them in mock court if the outcome is pre-determined. This sort of falacious theatrics is very disingenuous.
February 4, 2010, 4:30 pmBuford Gooch says:
Webb is busily setting himself up for a primary challenge to Obama in 2012.
February 4, 2010, 6:33 pmBerkeley_Dailey_Planet says:
You all are debating how many angels can dance on the head of a pin.
This is about war and enemies and all that.
What Robert Gibbs (bless his pointed little head) was effectively stating in his gut reaction was quite true.
KSM will eventually be tried at either the cost of hundreds of millions $ OR by Hollywood Actors on a mockup of a German Gunboat in Lake Victoria, Africa Then executed… It matters not which.
After he is given a fair chance to say his piece and present evidence and cross examine and make a closing argument, he will be convicted and then Hanged. It’s a foregone conclusion.
Justice Schmustice. This process is about resolution, not justice.
In U.S. criminal court, based on the length and totally stymieing the DOJ in the Zacarias Moussaoui case, resolution won’t be a very quick process either; sometime during the next Presidential term, after 2012 you’ll see resolution.
Justice you say ?
Justice would be to have Hollywood Actors try him on a mock-up German Gunboat in Lake Victoria, Africa, have the ships captain try him and convict him, then summarily Hang Him from the yard arm.
If he survives the Hanging, well he can always be put back on the African Queen and then blown up.
February 4, 2010, 7:55 pmA. Dawson says:
If it’s a foregone conclusion why bother to try him at all? Why not just carry out the sentence?
February 4, 2010, 9:16 pmRicardo says:
The legal logic is pretty well-established. People who commit crimes against U.S. nationals in certain circumstances are liable under U.S. criminal law even if the crimes occur outside the U.S. Other statutes, like the torture statute and laws against child sex tourism, only apply to U.S. nationals who do certain things outside the territorial limits of the U.S. One of the precedents for this is laws on piracy and slave trading, which could be enforced by any nation on anyone captured on the high seas.
The “they” here incidentally refers to the U.S. military, not the Iraqi government since Saddam was in U.S. custody up until the point he was transported to the gallows. If you watch the video of the execution, you will get an idea of why he was put on trial: his executioners were taunting him with chants praising Moqtada al-Sadr. Even the execution that took place still looked like the work of a sectarian lynch mob but it could have appeared even worse without a trial. The thinking at the time was that a trial was necessary to expose Sunnis to the reality of just how horrible Saddam Hussein was. Anecdotally, this was a partial success.
In any case, you should look into how dictatorships actually operate in practice. They rarely get rid of all the laws against the conduct they engage in since to do so would be to admit to the horrific nature of their often secret operations.
February 4, 2010, 10:14 pmMichael B says:
Obama’s is the presidency of the incarnate word in the most superficial conception imaginable: words, words, words – ever and always devoted to avoiding rather than facing fundamental realities: the trompe l’oeil presidency.
February 4, 2010, 10:31 pmSarcastro says:
Note: no one who complains about using too many words should then drop a “trompe l’oeil” in the same breath.
February 5, 2010, 8:31 amOwen H. says:
I think this is relevant to the discussion.
They are not soldiers. They are not “enemy combatants”. That gives them too much dignity. They are criminals.
February 5, 2010, 5:29 pmMoneyrunner says:
My one-year-old granddaughter is learning how to fit nesting cups into each other. Soon she will graduate to fitting shaped pieces of wood into holes of the same shape.
Not until she is much older will she have the ability to make new shapes that fit into new holes.
In that respect she is like lawyers who are seeking to apply old rules to new situations; trying to conflate war and crime, trying to make sense of a new mode of aggression using rules which no longer apply. At least the Bush administration understood that this war was different and developed a process for managing the treatment of prisoners. For this they were widely excoriated by the Left.
The Left refuses to acknowledge the changes, partly because of an irrational hatred of Bush, partly because many believe that there is no mortal threat to the country (some say that the loss of few hundred or even a few thousand people killed a year is the new normal) and partly because they have been trained to think as lawyers and the answer to every question is found in the law.
We do know, based on polls, that the majority of the American people do not wish KSM and the 9/11 conspirators to be given a civilian trial. The people who pushed for this will soon have their heads handed to them and the Obama administration is doing what it does best, pushing sacrificial lambs under the bus. The next one appears to be Eric Holder who was last seen making the argument that they are not doing anything different than the Bush administration.
February 6, 2010, 12:18 pmSarcastro says:
Such telepathy! At least you manage to discount any possibility that they have principles that differ from yours.
February 6, 2010, 1:47 pmMoneyrunner says:
On the contrary. The Left has principles that differ from mine. And it doesn’t take the ability to read minds when opinions are expressed openly in writing, verbally and in video.
February 6, 2010, 3:38 pmSarcastro says:
Yeah, I’m sick of the leftists always writing about how they want to try terrorists in criminal court ’cause they hate Bush and are in denial about the true existential crisis that faces America. And they are always talking about how they are slavish legal formalists.
February 6, 2010, 4:57 pmMichael B says:
Not simply “too many words,” Sarc, too many words absent meaningful content, too many words absent integrity and transparency, too many words devoted to his narcissism, etc.
Besides, given Obama’s Euro-like socialist interests coupled with his Alinskyite and Gramscian interests and praxis, trompe l’oeil seems more than fitting. Further, given his increasingly obvious displays of petulance, sturm und drang might be thrown in as an apt descriptor as well.
February 6, 2010, 6:26 pmSarcastro says:
Michael B could have saved a lot of electrons by simply writing “I hate Obama” instead of sounding all fancy.
And then the usual tropes, too! Narcissist, socialist, Alinsky, petulant? Why not add creepy or crypt-Muslim? Bleagh!
Whenever I go on anti-Obama rants, I try to spice things up by varying my themes to beyond the FOX narrative.
Some of my favorites:
“Obama’s long-legged arrogant walk, without purpose. Too many steps devoted to bein’ Obama.”
“Obama’s invisible mustache, always twirling it as he plans the doom of America.”
“Obama’s fatness, his greasy love of eating other people’s food, his getting stuck in the bathtub all the time and making bankers and auto makers bankers to bail him out.”
February 6, 2010, 7:13 pmGuy says:
What process was that? Indefinite executive detention without recourse, appeal, or any sort of adjudicatory process of any sort? (Remember, before scotus got involved the executive claimed it could hold “enemy combatants” witout any process at all – not even the CSRT’s or military commissions were provided). I’m sure they spent a long time working out the intricacies of such an elaborate and carefully designed process.
February 7, 2010, 3:21 pmMoneyrunner says:
Sarcastro skewers straw men. So does Obama. It’s a trope. It’s fun to watch, but it’s not worth arguing with because the perp knows what he’s doing and he knows that it’s a lie.
February 7, 2010, 6:52 pmMoneyrunner says:
Guy,
Think about what you would do if you were in charge of America, charged with protecting it and were attacked by combatants without uniforms, using your own most sophisticated systems against you. They have demonstrated that they are capable of mass murder and that they are willing to lose their own lives in the process. What are they? Criminals? Soldiers? Something new? Something old? What do you do with them when you capture them? Which pre-cut legal hole would you fit them in?
Enemy POWs in past wars were detained until the end of the war. Is this war over? Are they POWs? Is this a war or a crime spree? Tell me about the alternatives you are proposing. I understand you don’t like the answers that Bush gave. What are yours?
By the way, the Bush answer resulted in the release of people who are back on the ground fighting our soldiers. His system was faulty. What’s yours? So what’s this about
February 7, 2010, 7:04 pmMichael B says:
Sarcastro, witlessly, picks his nose and sneers, applauding himself in the process, using the “hate” crutch and trope as well, avoiding any substance whatsoever.
Fact of the matter is, with Clinton, cherchez la femme; with Obama, cherchez l’idee fixe. That fact, coupled with his I-me-my narcissism and pride, suggests he may well be painting himself into a corner from which he’s unable or unwilling to extricate himself.
Can he change? In theory, yes, assuming he has the desire and the will to do so, but it’s doubtful Obama possesses either quality given his cossetted and ideological/political background, habits, etc. Ecce homo, the wouldbe prodigy and messiah has turned out to be a bit of a farce, something of a bemusement, on his way, it would seem after a full year in office, to fulfilling his Jimmy Carter II destiny.
tempus fugit, vita brevis, sic transit gloria mundi
February 8, 2010, 8:38 pm