Adam Serwer on the John Allen Muhammad Model

By Benjamin Wittes
Tuesday, October 19, 2010, 11:03 PM

Adam Serwer has a very interesting response to my post a few days back about charging KSM and friends in both Article III courts and military commissions. He says he wouldn't oppose the idea, but he doesn't "think the right is likely to take it" as it 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."

I find it very encouraging that Adam is potentially amenable to this idea. It suggests that at least thoughtful lefties will not dismiss it out of hand. But I disagree with Adam that there's nothing in this idea for the right. I actually think the right gets a lot. It's just that what the right gets--which is very important to the right--doesn't come at the left's expense.

The right takes the idea that America is at war extremely seriously. Many conservatives instinctively fear steps that complicate the simple proposition that we are fighting a war. Trying the enemy in civilian court  is not necessarily a step away from the war paradigm, but it is a step away from the pure war paradigm to which many conservatives are spiritually attached. The administration has no doubt that the country remains at war and invokes its war powers constantly. That fact notwithstanding, the decision to try the 9/11 conspirators in federal court will inevitably appear to be a move back towards the criminal justice paradigm and away from warfare. All practical issues aside, this is damaging to the conservative vision of the very nature of the conflict. Military commissions are a tool of war-time justice, and the decision not to use them sends a message that is heard far louder than it is spoken. By charging also in military commission, the administration would be emphasizing a bedrock premise that is very important to conservatives and with which just it happens to agree.

I am, at this stage, unsure as to which trial should properly proceed first under the scheme I outline. For the reasons I explain here, it is probably impossible to assess which forum makes more sense for any given case without a detailed analysis of non-public evidence. But at a minimum, conservatives would get their symbols and premises affirmed--rather than rejected. Importantly, they would get an insurance policy (a second trial in the forum of their choice) in the event that their fears about the impossibility of trial in federal court prove more accurate than Adam believes.