Guantanamo: Prosecutions

And the Answer Is...

By Benjamin Wittes
Tuesday, April 5, 2011, 9:24 AM

Yesterday, I wondered how the New York Times would treat Attorney General Holder's announcement of a military commission trial for the September 11 conspirators: "Will the Times praise Holder for respecting the rule of law by holding the 9/11 conspirators in illegal detention before subjecting them to a trial of dubious legality? Or will the Times blast Holder for submitting, as the Times insists the administration must, to Congress’ requirement that it behave unlawfully?" The answer, it seems, is the former. Today's New York Times editorializes through a lot of bluster about political cowardice,

Given the circumstances, Mr. Holder is right to push for a military trial for Mr. Mohammed, rather than let him linger in indefinite limbo. His decision will test whether reforms to the military commission system will allow for both a fair prosecution and a vigorous defense.

I don't have any basic quarrel with this sentiment. But I also think the New York Times should be barred by the alas-nonexistent doctrine of intellectual estoppel from making it. The Times, after all, has argued that military commissions are an affront to the rule of law, a position that it did not frame situationally. It has also argued, quite inexplicably, that military detention of terror suspects, even pending their ultimate trials, is illegal. I am therefore not entirely sure how it can now urge both of those things simply because Congress has passed restrictions on detainee transfers to the United States for civilian trials.

Indeed, as I pointed out in my post yesterday, it's a bit of a puzzle what position the Times could possibly take with respect to the disposition of the 9/11 conspirators that is consistent with its recent statements on detention and trial. It can't reasonably support a military commission trial without supporting actions it describes as of "dubious" legality. It can't support a federal court trial without supporting the violation of the transfer ban, which it insists Obama is correct to respect. And it can't support continuing to detain the suspects either, since it has repeatedly described long-term military detention as illegal. Were the Times going to respond to Holder's announcement without doing violence to a prior recent editorial position, I think its only option would be to advocate freeing the 9/11 conspirators. But ironically, this too would have a legal problem in the Times' worldview. Freeing KSM and his fellows in some country abroad would, after all, presumably run afoul of a different transfer ban the Times has insisted be respected.

I can think of only one out for the Times. In this editorial, the Times made clear that notwithstanding U.S. statutory law, judges must have the power to order detainees freed onto U.S. soil.

So here's the lawful course of action for the Obama administration in the strange world of the law according to the New York Times' editorial board: It could concede in the context of a habeas suit the illegality of the continued detention of the 9/11 conspirators, and it could await a judicial order requiring their release. This order would get it around the statutory restrictions--both the overseas transfer bans (which contain an exception for court-ordered transfers) and all constraints on domestic resettlement. Then, if no country volunteers to step up to the plate to take KSM and his colleagues with appropriate assurances of humane treatment, as could be reasonably expected, the administration could free them all in Topeka.

The funny thing about this crazy scenario is that it relies entirely on perfectly fair characterizations of actual editorials by the New York Times. Indeed, I can honestly think of no other lawful course of action for the Obama administration under the law as described by those editorials.

If you can, please send it to me. A prize to any reader who comes up with a strategy for KSM that is both unambiguously lawful under the above-cited New York Times editorials and politically conceivable on Planet Earth.