I've said before that if the administration chooses to retreat on trying Khalid Sheik Mohammed and the other September 11 conspirators in civilian court, he might not be brought to justice at all, given the constitutional vulnerability of the military commissions. Brookings' Ben Wittes and former Bush Office of Legal Counsel head Jack Goldsmith are recommending indefinite detention as a "solution" to the problem:
Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.
I have a great amount of respect for both Wittes and Goldsmith, but continuing the indefinite detention of KSM and his alleged co-conspirators on the grounds that it would be less politically costly to the administration perpetuates how we got to this point in the first place -- the Bush administration's defiance of the law when the law didn't suit its purposes.
I realize that Wittes and Goldsmith are arguing that there's nothing illegal about holding KSM forever, but they also explicitly acknowledge that such a decision would be a political one. They write that "the political costs" of a trial "have become exorbitant" even "unaffordably high" and even a military commission "isn't worth the effort, cost and political fight it would take." This would be a hollow concession -- there's no political ground to be gained here with Republicans, who will cast the whatever the administration does in apocalyptic terms, no matter how close it comes to policies they've endorsed in the past.
These are questions of convenience that I think have no place when discussing the government's obligations under the law. KSM and his cohorts are likely guilty of a terrible crime, and they should be brought to justice for it. Wittes and Goldsmith fail to properly consider the costs of holding KSM forever without trial -- the American people growing further acclimatized to a government whose definition of justice and commitment to the rule of law is increasingly capricious. That kind of long-term damage is immeasurable and a far greater cost to the country than the short-term false outrage of McCarthyists and hypocrites.
-- A. Serwer
