Ben Wittes has a modest proposal for resolving the conflict over whether to try Khalid Sheik Mohammed and the alleged 9/11 conspirators in civilian court or military commissions. He suggests doing both:
Call it the John Allen Muhammad model. The old D.C. area sniper case is strangely instructive here. Recall that when the snipers were captured a number of years back, several of the various jurisdictions in which they had killed people filed charges against them. A Virginia county was allowed to proceed to trial first and given custody over the two suspects, but the other jurisdictions had their own equities in the matter. And they didn’t drop their cases. They held them in reserve, and Maryland prosecutors actually took Muhammad to trial even after his Virginia death sentence. If by some fluke, the Virginia trials had ended in acquittal, other cases in other states would have proceeded as well.
That's an interesting model for KSM and his colleagues. These men are undoubtedly war criminals, who have committed crimes triable by military commission. They are also undoubtedly criminals under a gazillion different sections of the U.S. code. Proponents of military commissions believe deeply and sincerely both that military commissions offer the most appropriate and viable trial forum and that it is symbolically important for the government to stress through the trial process that America is at war. Trial by commission thus has both prudential and spiritual justification for its enthusiasts. Part of the reason that people so viscerally oppose trying the 9/11 conspirators in federal court is that they perceive bringing them to civilian court as somehow relinquishing the principle that the country is at war and returning to a law enforcement paradigm.
By contrast, proponents of federal court trials believe with equal depth and sincerity that these offer the best answer in pragmatic terms and that their use best honors the rule of law. For them, the failure to use Article III courts bespeaks a lack of faith in American justice, an effort to end-run our values. Again, there are both symbolic and pragmatic concerns at play.
Wittes doesn't address three of the irreconcilable concerns of politicians who support military commissions to try KSM and company: That the security costs are prohibitive, that there's no way to try them safely anyway, and frankly that some of the people opposed to a trial would prefer KSM never be brought to justice than see Obama actually do it. Wittes wouldn't make the latter argument, but I think it's true.
Obviously, I don't buy that the former two points are true. I think civil libertarians would object to the notion of a second trial as a "fail-safe," but I personally wouldn't oppose this compromise. I don't think the right is likely to take it, though, because a civilian trial for KSM and his cohorts would deflate the myth at the heart of the pro-commissions argument, which is that civilian courts are literally incapable of trying these cases. This compromise has some elements that are hard for the left to swallow, but in principle, they'd get what they want. The right really gets nothing essentially conceding the argument.
