In the past couple of days I’ve searched the blogosphere for comment on Attorney General Eric Holder’s decision to try KSM and four other defendants in federal court. As far as I can judge, opinion concerning this decision is largely — one might almost say overwhelmingly — negative. But equally, as far as I can judge, these opinions appear in venues hostile to the Obama administration, which leads me to question whether their authors have weighed the issue dispassionately. Certainly “dispassionate” is the last adjective I would apply to their assessments.
Here’s my sense of the most common objections to a civilian trial, followed by the responses I find most persuasive:
1. Objection: A trial in civilian court would compromise our intelligence sources. Response: Yet methods are used in military commissions to protect intelligence sources, and these methods are transferable to civilian trials.
2. Objection: KSM et al. would use a civilian trial to rant about their hatred of America, etc. Response: So what? Judges have very little tolerance for rants, whether they emanate from defendants or counsel (defense or, for that matter, prosecution). Even such rants as did emanate would be utterly predictable, persuasive only to the already persuaded.
3. Objection: Trial in civilian court would turn into a media circus. Response: This would require the willing complicity of the media. I leave it to the journalists among my readership to tell me whether the media would like to have a media circus, or if one is somehow unavoidable. This is actually a real question with me. I honestly don’t know whether the media — certainly elements of the media, anyway — is capable of behaving responsibly in this matter.
4. Objection: Trial in civilian court would require elaborate security measures. I just visited the New York City Counterterrorism Division last week. Elaborate security measures in the vicinity of the federal court house, Foley Square, Police Plaza, etc. are already in place, since that district has long been recognized as a high value terrorist target. The Division has since its formation in 2002 developed elaborate relationships with other counter terrorism agencies. A trial in federal court would undoubtedly require the intensification of security arrangements, but this would be an incremental increase over measures already in place.
5. Objection: KSM et al. might be acquitted. Response: Given the weight of evidence against KSM et al., I think such an outcome is vanishingly small. But in any fair trial, this is necessarily a possible outcome, otherwise the process has no legitimacy.
15 Comments
Mark, I’d like your opinion (and anyone else’s) on this idea:
We have said we are in a “war on terrorism.” There is Congressional sanction for this. Our opponents freely say they are at war with our Western values. Why not treat these people as simple POWs? Build a compound in Arizona, assign a battalion of troops to guard it, and be done with it. Let the Red Cross and select Muslim diplomats visit occasionally. POWs don’t have access to the courts; this lets us lock them up and throw away the key, essentially. If Al-Qaeda wants to someday discuss an end to hostilities, fine.
Actually, Jim, I don’t have a good answer offhand. I think the problem is that we insist on seeing them in a sort of twilight zone between criminals and combatants, hence the invented category “unlawful enemy combatant.” To treat them as POWS bestows belligerent status on Al-Qaeda and, in that respect, legitimizes them. Perhaps more importantly, it gives them the protections of the Geneva Convention, so we can’t do things like, you know, torture them — I mean, “employ enhanced interrogation techniques.”
I don’t see a problem in giving them the protection of the Geneva Convention, nor do I see it as legitimizing them.
Well, that’s because you hate America.
I think the biggest criticism that can be made is that there doesn’t appear to be a rationale as to when criminal process, and when military process, is to be used. I suppose it can be argued that that allows for flexibility, but I think we should at least have some indication. The best I can make out is that criminal process is seen as more “legitimate”, although I’m not sure whom we are trying to impress. Moslems? Al-Qaeda? the Euro street? I find it difficult to believe that an audience we care about is really going to take more comfort in seeing a conviction in US Federal Court. If the only true law is Sharia, why would one American court be seen as better than another? As far as Geneva and Hague conventions, and customary law of war/armed conflict, I think a lot work still needs to be done in defining how this body of practice, designed for state-v-state conflict, can be made to apply in a conflict between one or more non-state actors.
Scott S. has a point there. Where do KSM and company fit in terms of venue? Domestic criminal law? POW’s according to Geneva? I am not sure either of those is the best fit. Granted, lawfare is ultimately a political tool, so you we could put them anywhere, but think about it:
1. Domestic civilian criminal law is more geared towards “real” crime such as theft, drug cartels and the mafia. Would we have tried an Axis sabateur during WW2 in a civilian federal courthouse?
2. Geneva (by my current understanding at least) is designed more for state vs. state warfare. KSM and company are not officially agents of any government.
This seems to fall into a legal gap.
I oppose trial in civilian court for these guys. There is no question a civilian court would indeed do a fine job of preserving secrecy, weighing the evidence, and not turning it into a circus. The issue is that it just isn’t the right venue. If a Taliban foot soldier shoots at a Marine, do we charge the Taliban in civilian court for attempted murder? No. If a Marine shoots at the Taliban, should the Marine be tried under Afghan civil law? If an Iranian state agent blows up a US embassy, do we try that state agent in federal court or consider it an act of war to be dealt with in that realm.
I would argue that KSM and company (whether having official state sanction or not) are waging war and not crime. As such, we need to look at Geneva for their status. In this instance, Geneva DOES address non-state actors participating in a war. They have their own category and status.
“I would argue that KSM and company … are waging war and not crime.”
War and crime are not mutually exclusive. KSM’s deliberate targetting of civilians would, in a war today, be considered by a broad range of folk to be a war crime. Trying KSM in American civilian courts is a step toward justice not only being done but being seen to be done. If there hadn’t been so many legitimate questions about the military commissions, it might be different, but their inadequacies as originally established taint them too much now for them to achieve the ’seen to be done’ part.
The case of those fighting military forces is different but their detention as PoW’s faces the problem that it is life imprisonment without trial until you can figure out just how “terror” is going to surrender and end the war.
“Trial in civilian court would turn into a media circus. ”
Might make a nice change to have a media circus about something important rather than over the more usual celebrity crime/peccadillo.
“War and crime are not mutually exclusive.”
Indeed not. The IRA war was funded in part by methods that any criminal mafiosi would recognize. Was it war or crime? Depends who you ask.
“KSM’s deliberate targetting of civilians would, in a war today, be considered by a broad range of folk to be a war crime.”
That also depends who you ask. I consider it a war crime. I would wager that some folks in backwoods Pakistan, Saudi Arabia, or among the western Left do not. By the same token, the American attack on Fallujah is considered a war crime by some. Hamas rockets hitting Sderot or brainwashed Palestinian child suicide bombers targeting civilian Israeli buses aren’t really considered war crimes by the UN. Like all purported violations of law, it depends on who decides if it is a crime or not and to prosecute it or not.
“Trying KSM in American civilian courts is a step toward justice not only being done but being seen to be done.”
“justice” resembles silly putty in its malleability when it comes to cases like this. The part about justice, “being seen to be done” is the key here.
How will a civilian federal criminal trial help or hinder our efforts in this war (and it is a war) against the Jihad that KSM and others are waging? That, not any question of morality or law, should guide our decision here. It may resonate differently among different audiences.
Can’t be completely sure that my long-past experience is relevant, but as a junior officer back in the 60s & 70s I sat on many, many courts-martial and came away with a high opinion of military justice. My fellow officers & senior NCOs who sat on these courts-martial were as independent as any cross-section of the public, in my opinion, not inclined to bow to any perceived command pressure and showing the same distribution of “hang ‘em high” and “kinder, gentler” that you would find in any community. I don’t see any conceivable problem in trying KSM in civilian court, but I also think he would have gotten a fair hearing in a military tribunal if it were done under the UCMJ. Either way it’s going to come down to how much intelligence information is made available to the jury.
I am a civilian police officer (just routine patrol stuff, nothing very dramatic) now and served a small stint as an enlisted Navy reservist (2 mobilizations doing nothing very exciting during either of them). The law across US states varies widely, but even in the county where I work I have seen cases with similar fact patterns go widely different directions. That said, for the most part in Ohio if you are charged with a crime, you probably actually did that crime and then some to get charged in the first place, whatever the court outcome. My limited exposure to the UCMJ has been to see poor souls get railroaded because they angered the wrong superior. I don’t believe that KSM is subject to the UCMJ. You pretty much have to take Uncle Sam’s shilling to be subject to it if I understand correctly.
In my view it comes down to two questions:
1. Most importantly, which method will give us the most advantage in the GWOT (or whatever else it is now called)?
2. To a lesser degree, what is the most actually legally appropriate venue. Would the British give a Crown Court hearing with lawyers to a Luftwaffe pilot caught after bombing London? How about a shot-down allied airman after doing some urban renewal at Dresden? While some of their methods do look like crime for the funding (drug smuggling for the Taliban and the like), the real intent is to wage a war. And Geneva does indeed provide a status for non-state actors who join in as combatants. It would just make us look bad to shoot them out of hand, which is what that status allows in theory.
Ralph,
There are mechanisms to allow intelligence to be used as evidence in civilian criminal cases. Aldrich Ames, Hansen and similar folks would not have gone through the federal civilian criminal process if that were not the case. I agree with Prof. Grimsley that many right wing objections to a civilian trial are flawed. There would not be a media circus, security would be maintained and intelligence would not be compromised. It is just that doing so sends a signal that will be read in two different ways:
1. Primarily, our enemies do not speak the language any law but the Salafist bastardization of Sharia. They understand power, not the niceties of our inner moral turmoil. A civilian trial sends a signal of weakness to them.
2. Our allies may read this also as a weakness in that if we don’t even defend our own interests, how willing are we do defend theirs? Sort of a Carter and Nixon dynamic. Was Nixon a deeply flawed criminal? Absolutely. But did Mao and Brezhnev listen to him? You bet. Was Carter an upstanding moral sunday school teacher type, a shining paragon of law and virtue (some exaggeration here) by comparison? Yes. How effective was Pres. Carter at commanding respect from the tin pot thugs and goons of the world? Not very.
What we really need is an FDR type is able to fix our domestic deterioration while improving our position abroad. It remains to be seen if Pres. Obama fits that bill.
I think Jaron’s earlier comment was right on- a legal “seam” if you will. Some form of military tribunal that acknowledges this type of offense / combatant was probably the right answer, and we as a nation have the ability to make such a process transparent and fair, but the previous administration made such a hash of it that we can’t realistically go back. Torture, undisclosed locations, and renditions have eliminated that option.
Thanks for all these good, constructive comments. It’s nice to see that none of them were mere rants. Personally this issue has made me curious to understand in greater depth the legal status of the alleged terrorists we’re holding — what exactly it means to be an “illegal enemy combatant” under U.S. law, what the status of these people would be under international law, etc.
I do know that a policy was worked out some months ago about which alleged terrorists would be tried in civilian court and which by military commission. (For instance, those involved with the attack on USS Cole will be tried by the latter.) But I’d like to know the details.
Prof. Grimsley,
You might have access where you are now to military lawyers who can clarify the legal grounds. There are also “blawgs” by attorneys out there that talk about this issue.
I do maintain that this is ultimately a policy/power calculation rather than a legal one. On issues like this theoretical law (whatever the “legal” outcome is) takes a back seat to larger considerations. There is the old saw about, “letting justice be done, though the world perish in the process.” The responsibility of a national leader is more to prevent the world from perishing (i.e. furthering our state interests) than it is to let “justice” (whatever that means) be done.