Following somewhat in the footsteps of the Constitution Project and former State Department official John Bellinger, former Bush Department of Justice officials Jack Goldsmith and Jim Comey have backed Eric Holder's decision to try Khalid Sheik Mohammed and the other alleged 9/11 conspirators in civilian court. Goldsmith famously withdrew the administration's torture memos, and Comey backed then Attorney General John Ashcroft's decision not to certify the NSA wiretapping program.
Goldsmith and Comey don't go as far as the Constitution Project in pushing against preventive detention, and they're fine with the two-tiered system of justice for suspected terrorists. In fact, they're painfully honest about it:
It is more likely that Holder decided to use a commission system still learning to walk because the Cole case is relatively weak and will benefit from the marginal advantages the commission system offers the government. It is also likely that the Justice Department will decide that many other terrorists at Guantanamo Bay will not be tried in civilian or military court but, rather, will be held under a military detention rationale more suitable to the circumstances of their cases.
Meanwhile, Charles Krauthammer fufills his weekly duty by resurrecting the conservative strawmen of the past week and marching that zombie army across the Post op-ed page. The only valid criticism he raises of the decision to try KSM in a civilian trial is that "whatever the outcome of the trial, KSM will never walk free." It's hard to see this criticism as based on his concern for due process however, since he's angry that "receive the special protections and constitutional niceties of a civilian courtroom." The more honest version of this argument is that conservatives don't believe that people accused of terrorism should be given a presumption of innocence -- which undermines the whole "fair trial" thing. That's exactly the point, but you can't just come out and say "I don't believe in fair trials" so you dissemble as above, or in the Obama administration's case, you just tell everyone what a good job you're doing adhering to the rule of law even as you assure people that the accused will be executed.
Krauthammer also fears, like other conservatives, the unhinged rants of KSM. There's really nothing more self-implicating than the chattering teeth of Republicans in the face of a terrorists' rants -- in a military commissions trial, KSM's indictment of the United States might have some resonance, particularly in the Middle East. Placing him in a civilian courtroom is a propaganda coup for the U.S., not the other way around. When people get hysterical over what KSM might say, it makes me wonder how much of what they think he might say is actually true. Spencer Ackerman has another theory: Seeing Al Qaeda terrorists being brought low before a court of law demystifies them for a fearful public, diminishing the political currency of terrorism-based fearmongering.
I can see why the GOP would be afraid of that.
-- A. Serwer