This is a trial balloon. I'm not 100 percent certain that what I am suggesting is wise, politically astute, or even that it would work legally. I have not thought through all of the implications of what I am going to suggest here. But maybe, just maybe, it is the answer--or an answer--to the problem of how to try KSM and the 9/11 conspirators.
There have been a great many creative proposals for a KSM trial, and I won't try to rehash them all. But in the realm of the politically plausible, there are only two options: a military commission and a trial in an Article III court.
I think the government should pursue KSM and his colleagues in both.
Call it the John Allen Muhammad model. The old D.C. area sniper case is strangely instructive here. Recall that when the snipers were captured a number of years back, several of the various jurisdictions in which they had killed people filed charges against them. A Virginia county was allowed to proceed to trial first and given custody over the two suspects, but the other jurisdictions had their own equities in the matter. And they didn't drop their cases. They held them in reserve, and Maryland prosecutors actually took Muhammad to trial even after his Virginia death sentence. If by some fluke, the Virginia trials had ended in acquittal, other cases in other states would have proceeded as well.
That's an interesting model for KSM and his colleagues. These men are undoubtedly war criminals, who have committed crimes triable by military commission. They are also undoubtedly criminals under a gazillion different sections of the U.S. code. Proponents of military commissions believe deeply and sincerely both that military commissions offer the most appropriate and viable trial forum and that it is symbolically important for the government to stress through the trial process that America is at war. Trial by commission thus has both prudential and spiritual justification for its enthusiasts. Part of the reason that people so viscerally oppose trying the 9/11 conspirators in federal court is that they perceive bringing them to civilian court as somehow relinquishing the principle that the country is at war and returning to a law enforcement paradigm.
By contrast, proponents of federal court trials believe with equal depth and sincerity that these offer the best answer in pragmatic terms and that their use best honors the rule of law. For them, the failure to use Article III courts bespeaks a lack of faith in American justice, an effort to end-run our values. Again, there are both symbolic and pragmatic concerns at play.
The truth is that both sides have valid points at the symbolic level, and that trial in either forum has big risks and could end up playing out very badly. Just as charging the snipers in multiple jurisdictions offered an (as-things-turned-out unneeded) insurance policy against a total system failure and enabled many of the jurisdictions to honor their dead, charging the 9/11 case in both military commissions and federal court could, if done right, serve similar objectives.
Yes, I know, the situations are not quite parallel. Maryland and Virginia are separate sovereigns. The United States is a single sovereign whether it proceeds in a military commission or a federal court. And that single sovereign is constrained by the Double Jeopardy Clause. Notwithstanding that fact, I think--and my judgment here remains very tentative--that it should be possible for prosecutors to charge the 9/11 conspirators in multiple venues at the same time. Double jeopardy would certainly forbid their prosecution for the same crimes in multiple forums--or, to be precise, it would prohibit proceeding in the second forum once prosecutors had tried the accused in the first. But it should not forbid their prosecution for different crimes in different forums, even by the same sovereign.
I have only taken a quick look at the case law here, but it seems quite clear that for double jeopardy to be a bar, the elements of the crime have to be essentially congruent with, or inclusive of, one another. See, for example, Gavieres v. United States, 220 U.S. 338 (1911), Blockburger v. United States, 284 U.S. 299 (1932), and Brown v. Ohio, 432 U.S. 161 (1977). This makes sense. Double jeopardy doesn't prohibit the prosecution of a murder by someone who was acquitted earlier of robbing a bank.
Consequently, double jeopardy concerns might create a real problem for multiple-venue prosecution in the case of someone accused of a single discrete act chargeable in both federal court or military commissions--someone like, say, Omar Khadr. There, prosecutors have got only one or two fact patterns to charge, and they have to choose where they want to do it.
But the 9/11 conspirators, by contrast, present a target rich environment. They committed a lot of crimes. There are a great many fact patterns available to prosecutors that are chargeable in both venues. It should be possible to divvy them up, putting the ones that seem most like war crimes in front of a commission and the ones that seem most like more classic federal crimes in front of an Article III court.
Double jeopardy may more seriously constrain charging options in another, subtler way. Under Ashe v. Swenson, 397 U.S. 436 (1970), prosecutors can be estopped from alleging in a second case "an issue of ultimate fact" that "has [already] been determined by a valid and final judgment." So in other words, if the only basis for acquittal in Case A in federal court is the finding that the government had failed to prove that KSM conspired to kill U.S. nationals by hijacking planes, the government probably can't later allege in Case B in a military commission that he conspired to kill U.S. nationals by hijacking those same planes and flying them into the Pentagon. Consequently, prosecutors would have to be extremely careful in their sequencing of charges and presentation of evidence to make sure that an acquittal in any first case did not necessarily imply the rejection of facts necessary to try a second. But my gut tells me that the magnitude and diversity of the 9/11 offenses create such an embarrassment of riches for prosecutors that this issue should be navigable by creative lawyers.
What's more, the Ashe issue would only arise, if it arises at all, in the event that the first trial flops and flops in a fashion that necessarily implies that the trier of fact had rejected facts that prosecutors need for the new case. It creates no bar until that happens. So prosecutors, if they are truly confident in their first case, could simply throw everything they had at it on the assumption that they are willing to spook the second case. Because they plan to win the first one, after all, they will never have to litigate it. (I would be very interested to hear from readers who think the double jeopardy problems here are more severe than I am giving them credit for.)
So what if, for example, prosecutors charged the attack on the Pentagon and the deaths there in a military commission but the hijacking of civilian aircraft and the deaths at the World Trade Center in federal court? They could then decide which to pursue first. Or to be more Ashe-sensitive, what if they charged KSM with a single discrete offense in federal court--say, the kidnapping and murder of Daniel Pearl (assuming for a moment, perhaps counter-factually, that this is provable using admissible evidence)--but charged the broader 9/11 conspiracy case in a military commission? Conversely, they could charge a discrete war crime in a military commission and the larger 9/11 conspiracy in federal court.
If something along any of these lines is possible--and whether it is depends pervasively on the specific evidence likely to be admissible--proceeding in this fashion would have some real advantages. The first and most important is that it would greatly alleviate the zero-sum quality of our current debate. Instead of deciding where to try KSM, the administration would merely have to decide where to try him first. Believers in commissions would not have to give up their preferred venue, merely to let prosecutors have a crack in federal court first, if the decision went that way--and vice versa if the decision went the other way. Of course, the second trial might never happen, just as a bunch of jurisdictions never brought John Allen Muhammad to trial. If the first trial ends in a conviction and death sentence, prosecutors might not bother with any subsequent trial. But by proceeding in this fashion, the government would have preserved its symbolic equity in the values that that second tribunal represents. By filing charges in multiple forums, the government would not be saying either that "this is war" or that "this is law enforcement"; it would be saying that it is both. That happens to be Obama administration's view of the subject. So the approach has the happy side benefit of accurately reflecting the administration's policy and world view.
Second, proceeding in both venues would provide a valuable fail-safe against the possibility of total system failure. This is a bigger possibility in this kind of trial than it was in the sniper case. Military commissions remain something less than ready for prime time; it's not clear what crimes the courts will ultimately deem triable by commission; and the tribunals themselves remain subject to challenge. Federal court trials too can go bad. And the volume of coerced evidence in the 9/11 conspiracy case could spook a trial in either forum. Having a second set of charges pending in a second forum even as the first set of charges goes to trial would reduce the ugly pressure to guarantee a conviction. It would also give Attorney General Eric Holder a ready answer to the question of what he would do in the event of an acquittal: He would move on to the next case, already waiting in abeyance. (There's still the question of what he would do in the event of acquittal in both forums, and the answer there is still just as uncomfortable: military detention still backstops both systems, if the administration has the guts to use it after acquittal.)
There are, of course, problems that this approach would not solve. It would not address the security questions associated with holding a trial in New York, for example, or the question of where in the long run military commissions should take place. And it could create optical problems of its own. Civil libertarians might respond to simultaneous charges in more than one forum as a government attempt to stack the deck and give itself more than one bite at the apple. And for those who regard military commissions as not merely undesirable but as per se illegitimate, holding a federal court trial alongside one will not solve their problem. Still, I suspect that a prosecute-in-both-venues approach would dramatically narrow the chasm that has opened up on this issue. Might people be willing to see their disfavored trial option prevail if the government held their favored one in reserve and honored its symbolic meaning?