The Goldsmith-Wittes-Posner Option Goes Live

By Benjamin Wittes
Saturday, November 13, 2010, 9:47 AM

The Washington Post is reporting this morning that the administration's solution to the problem of how to try KSM and his buddies may be, well, not to bother:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

If this comes about, it will be a significant vindication for a much-derided idea that Jack and I and Eric Posner--particularly Jack--have been advancing for some time. Way back in 2005, Jack and Eric wrote this oped in the Post, which begins:

Everyone involved in the contentious negotiations between the White House and Congress over the proper form for military commissions seems to agree on at least one thing: that al-Qaeda and Taliban terrorists ought to be prosecuted. We think this assumption is wrong: Terrorist trials are both unnecessary and unwise.

The oped concludes:

Congress and the president are wasting political energy designing a trial system that will satisfy few and convict even fewer. They should instead focus on improving the military detention process, a tool that has the sanction of law and custom and that has proved itself more than adequate for wartime needs.

More recently, Jack and I wrote this piece, arguing specifically against the consensus that the administration needed to bring KSM to trial:

The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don't bother trying them at all.

Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.

And only a few weeks ago, Jack reiterated the point in an oped in the New York Times:

THE Obama administration wants to show that federal courts can handle trials of Guantánamo Bay detainees, and had therefore placed high hopes in the prosecution of Ahmed Khalfan Ghailani, accused in the 1998 bombings of American embassies in East Africa. On Wednesday a federal judge, Lewis Kaplan of the United States District Court in Manhattan, made the government’s case much harder when he excluded the testimony of the government’s central witness because the government learned about the witness through interrogating Mr. Ghailani at a secret overseas prison run by the C.I.A.

Some, mostly liberals and civil libertarians, applauded the ruling, saying it showed that the rule of law is being restored. But many conservatives denounced it as proof that high-level terrorists cannot reliably be prosecuted in civilian courts and should instead be tried by military commissions.

The real lesson of the ruling, however, is that prosecution in either criminal court or a tribunal is the wrong approach. The administration should instead embrace what has been the main mechanism for terrorist incapacitation since 9/11: military detention without charge or trial.

We will have a great deal more to say about this, I am sure, if this turns out to be more than a trial balloon.