By William Fisher
It’s been a few days now since Benjamin Wittes and Jack Goldsmith wrote their op-ed in the Washington Post calling the trial of Khalid Sheikh Mohammed “dispensable” and proffering that “the politically draining fight about civilian vs..... military trials is not worth the costs.”
Their proposal: “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for some time to come, continue to do the heavy lifting in incapacitating terrorists.”
Benjamin Wittes is a senior fellow and research director in public law at the
Brookings Institution. Jack Goldsmith teaches at Harvard Law School and served as an assistant attorney general in the Bush administration. Both are members of the Hoover Institution's Task Force on National Security and Law.
After all the kerfuffle and back-and-forthing concerning where KSM would be tried and by whom, the Wittes-Goldsmith approach seemed sufficiently outside the box to at least warrant some further exploration.
So I contacted some of the brainiest civil rights lawyers I know to ask their opinions. Here’s what some of them told me:
David Frakt is a Lt. Col. in the Air Force Reserve JAG Corps and a professor of law at Western State University College of Law. He was formerly a military defense counsel who challenged the legitimacy of Military Tribunals and won the release of a GITMO detainee and his repatriation to Afghanistan.
He told me, “Wittes and Goldsmith's solution would satisfy no one. A trial would serve a number of important functions other than simply providing a lawful basis for incarceration if convicted and sentenced. The American people deserve to know what happened on 9/11 and who was behind it. The families deserve an opportunity to see justice served. The accused deserve an opportunity to have their guilt proven, or establish their innocence.”
He added, “Nearly everyone agrees that this was one of the most monstrous single crimes ever committed. Whether one views KSM and his alleged co-conspirators as war criminals or simply mass murderers, there needs to be a criminal trial in some forum.”
Frakt’s point of view is echoed by most of those we contacted. For example:
Chip Pitts, president of the Bill of Rights Defense Committee, said, “Blinded by the fog of the so-called “war on terror,” it is not surprising that a misguided and complicit former Bush legal official and a non-lawyer apologist for the war paradigm would be so ready to walk away from the last vestiges of the rule of law, but a moment’s reflection by thoughtful disinterested parties should confirm that continuing the illegal, immoral, and counterproductive indefinite detention of accused al Qaeda members simply risks more lives by further diminishing the nation’s reputation and handing the terrorists yet another propaganda victory.”
He continued: “The absurd and cynical invocation by these individuals of the abominable mess they helped to create as justification for Obama to make an even bigger mess of things might suit their interests, but it only further dilutes the possibilities of our country restoring justice and effective national security. As the father of international law, Hugo Grotius, wrote in 1625, ‘No one readily allies himself with those in whom he believes that there is only a slight regard for law, for the right, and for good faith.’ These authors should be ashamed and silent: no person of reason wants any more of their ‘advice.’ ”
“The suggestion that the Obama administration shouldn’t even bother to try Khalid Sheikh Mohammed, the self-described mastermind of the September 11 terrorist attacks, and his alleged co-conspirators is appalling. It disregards the experience of the victims of that attack, who deserve to see justice done. It also disregards the national and historical importance of publicly trying and convicting the men who, if proven guilty, orchestrated the largest mass murder and most lethal terrorist attack ever committed on U.S. soil.”
And Daphne Eviatar, senior counsel with Human Rights First, told me: “Wittes and Goldsmith acknowledge that it would be a terrible idea for the administration to try these defendants in a new, untested military commission system that raises unresolved legal questions and lacks international legitimacy. The right answer, then, is to try them in legitimate, time-tested federal courts with experience trying and convicting hundreds of international terrorists over the past eight years, not simply to take the cowardly way out via indefinite detention.”
Eviatar damns the WAPO piece with very faint praise, saying, “Still, Wittes and Goldsmith’s op-ed provides an important service: It highlights the shaky legal and moral basis of indefinite detention of any suspected terrorists charged with the killing of civilians on U.S. soil.”
Marjorie Cohn, president of the National Lawyers Guild, reminded me that “no trial” equates with “indefinite detention.”
She said, “While proposing an apparently pragmatic solution, Wittes and Goldsmith advocate an illegitimate process of dispensing with trials for these men. Holding people indefinitely without charge violates the
International Covenant on Civil and Rights, a treaty the United States
has ratified which makes it part of US law under the Supremacy Clause
of the Constitution. The Geneva Convention's procedure of holding
prisoners of war until the end of hostilities does not apply here, as
we are not involved in a "war"; terrorism is a tactic, not an enemy.”
She also reminds us that the presumption of innocence and the right to a trial “is enshrined in our Constitution; let's not dispense with them so cavalierly.”
Given the huge and as yet unresolved controversy generated by the question of where and by whom KSM should be tried, one can see how Goldsmith and Wittes might find it convenient to skip this quaint nicety altogether.
But take that step and we won’t have to wait long for the Al Qaeda propaganda machine to ramp up to full bore. Hear it now: "Those Americans, who think they’re so special because they follow the rule of law, are perfectly willing to throw their cherished Bill of Rights overboard whenever its convenient.”
Plus, we Americans would lose the considerable value of having KSM’s own testimony to confirm to the world that he is far too dangerous to ever be allowed back in the more or less civilized world.
Let us pray that Eric Holder and his boss find the cajones to hold their ground.