According to The Wall Street Journal, the White House is getting close to a deal with Lindsey Graham and two other Republicans it won't name to try Khalid Sheik Mohammed and the other alleged 9/11 conspirators in military commissions in exchange for the funding to close Guantanamo Bay. Take with the necessary salt, given that so much of it is off the record.
I will say that if this is just about closing Gitmo, it's a profoundly stupid idea -- and with the climate bill and immigration reform in the balance, it's probably not just about Gitmo -- but for reasons that I'll explain, I still think it's a bad offer. The money for closing Gitmo, as Spencer Ackerman points out, is in the Afghanistan war funding request, so filibustering it would be incredibly bad politics. Graham's partners won't even name themselves, so it's unclear this deal is coming along with anyone but Graham. Worse, trying KSM in a military commission might mean putting off a trial of any kind indefinitely because of possible constitutional challenges. This was part of the reason why Ben Wittes and Jack Goldsmith suggested Obama simply hold KSM indefinitely:
The legal and political risks of using the ill-fated military commission system are also significant. Since the Supreme Court offered a road map for a legally defensible system, Congress has twice given its blessing. But serious legal issues remain unresolved, including the validity of the nontraditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions. Sorting out these and dozens of other novel legal issues raised by commissions will take years and might render them ineffectual. Such foundational uncertainty makes commissions a less than ideal forum for trying Mohammed.
The deal with Graham then becomes something of a rope-a-dope; the administration takes the deal only to watch civil-liberties groups postpone a military commissions trial for KSM indefinitely through a lengthy legal challenge. The perception of the administration's incompetence on this issue would then be compounded.
Yesterday I spoke briefly over the phone to Wittes about his op-ed, and he made the perfectly accurate point that the administration is operating from a different "baseline" from civil-liberties groups (and me), in that the administration sees preventive detention as legitimate. When trying KSM in civilian court, Wittes argued, "the message you're sending is a really peculiar one, which is we'll try you if you can but if we can't we'll hold you anyway, and that does not seem to me to be a constructive rule of law message." Wittes explains that he doesn't oppose federal trials for terrorists as a rule, just that the administration has made it clear that it believes all three options -- federal trial, military trials, and indefinite detention -- are legitimate, and at this point the latter is the least politically painful option.
Wittes also offered a counterargument to his own op-ed:
The hostilities may someday end. What if we someday defeat al-Qaeda? Under a pure detention model you have to let him go. I think the answer to that question is as you get to that point, try him then, and by then we may have a better legal and intellectual infrastructure in place.
My thought is that this country cannot assemble a "better legal and intellectual infrastructure" as long as some 20-year-old who sets himself on fire while trying to blow up a plane sends our leaders into fits of hysteria. The KSM trial is an opportunity to banish -- or at least diminish -- the totemic power of al-Qaeda terrorists, a power which for narrow political reasons the Republican Party has worked to enhance. I disagree with Wittes in that I think our current legal structure is entirely adequate, but I also don't see how a "better" one could be constructed in a climate of the kind of paralyzing fear that makes us afraid to try murderers in our own legal system.
Wittes' point on the "rule of law message" is well taken. Part of the problem the administration is having here is that it has no consistent message to offer.
-- A. Serwer
