Marc Thiessen on "Holder's Terror Trial Catastrophe"

By Benjamin Wittes
Tuesday, October 12, 2010, 3:19 PM

I disagree with a great deal in this oped and don't mean to pick every nit I could find in it. But it is worth answering some of Marc Thiessen's major points, as they have a way of distilling and reinforcing the Right's conventional wisdom.

"If President Obama needed a clarifying moment to help him decide whether to try Sept. 11 mastermind Khalid Sheikh Mohammed in civilian court, a federal judge's decision last week to bar the testimony of a key witness in the trial of Ahmed Ghailani should have provided it."

Well, no. An interlocutory order that is apparently not preventing the government from proceeding with its case will not and should not be the "clarifying moment" Thiessen describes. Whether KSM can be tried in New York is a function, among other things, of whether the government can muster enough admissible evidence against him to present in a trial. Judge Kaplan's decision in the Ghailani case is a data point in that conversation--particularly if large quantities of the government's evidence against KSM are derivative fruits of his interrogation. But the ruling isn't much more than that.

"Instead of a slam dunk, Holder is now facing a catastrophe of his own making."

I somehow doubt that prosecutors would be proceeding with their case without appealing Judge Kaplan's ruling if they thought its result would be what Thiessen describes as a "potentially fatal blow." Thiessen is very quick to use words like "catastrophe" and "fatal," but it's possible--likely even--that what will emerge here is something more subtle: a conviction that comes with enough setbacks to make to make the prospect of a repeat performance in a higher-profile case less appealing than the Justice Department might have once thought. Having used such words, Thiessen will look pretty silly if at day's end the case against Ghailani doesn't fall apart, if the "catastrophe" turns into something about which Holder can claim victory. But there will still be an important point to debate if that happens--one that Thiessen, by dramatically overstating, will have ironically helped the Obama administration elide. That point is not that these cases are impossible, but that they are really hard, and really risky. And that point, it must be added, applies every bit as much in military commissions as it does in federal courts.

"[I]f the Obama administration insists on prosecuting Ghailani, there is a forum where the key witness against him would almost certainly be permitted to testify: a military commission at Guantanamo Bay."

Anyone who predicts comfortably what will and what will not be permitted in military commissions deserves, well, to be surprised by the development of military commissions. Conservatives have a spent a great deal of time over the past nine years overestimating the utility of military commissions from the government's point of view. While I favor the continued existence of the commissions and the development of the commissions system, intellectual honesty requires those of us who believe in them to concede their staggeringly unimpressive performance to date. They have not resulted in trials in any significant numbers. And they have not provided a forum in which the government could predictably use evidence the federal courts would bar. While the rules on the admissibility of evidence do appear to give commissions latitude to hear from a witness like the one Kaplan excluded, the ultimate admissibility would depend on the judge's sense of the "interests of justice." These calls have not in the past tended to err on the side of admitting material obtained under questinable circumstances. Thiessen may think he knows how a military judge would "almost certainly" rule in this instance. But the situation calls for greater humility than that. And notably, the commission lawyer he quotes as an authority on the subject shows exactly that humility. He only goes so far as to say that "it is possible that the witness might have been allowed to testify in a military commission."

"The Ghailani prosecution is hanging by a thread today not because of the interrogation techniques employed against him, but because of the Obama administration's ideological insistence on treating terrorists like common criminals and trying them in federal courts. . . . In 2008, KSM offered to plead guilty before a military commission and proceed straight to execution. Now is the time for Obama to finally take him up on that offer."

Thiessen here makes an important and revealing factual error--one that undermines his entire thesis. For it is actually not clear that Obama can legally take KSM up on his offer under current law. There is a serious question under the Military Commission Act whether one can get the death penalty as a consequence of a guilty plea in a military commission, as Attorney General Eric Holder has noted publicly. In courts martial it is clear that a suspect cannot plead guilty to a capital crime. In military commissions, the point is somewhat fuzzier. As Geoffrey Corn explains:

Section 949m of the MCA says that no person may be sentenced to death unless the members had unanimous concurrence on both the conviction and the sentence.  As a result I think the military judge would be obligated to reject a plea of guilty and enter a plea of not guilty (that is what would happen in a court-martial).

Corn adds that KSM,

could certainly either take the stand and confess to the crime, or enter into a confessional stipulation of fact.  At that point, the prosecutor would merely admit some modest corroborating evidence and the jury could convict.  There then has to be a sentencing hearing where the prosecutor admits aggravating evidence.  However, if KSM wants to die he could include the evidence of aggravation in his stipulation of fact and simply choose not to offer mitigating evidence.

In short, there may be a way for KSM to use a military commission to arrange his own execution, but it is not simple, and it does not involve a guilty plea. Indeed, it is a lot more complicated than a guilty plea in federal court. Thiessen's error here is revealing because he makes it in the course of arguing that the problem has an easy answer if only Obama would stop endangering America and use it. Yet the easy answer Thiessen proposes is illegal. And in reality, the problem actually doesn't have an easy answer. We would aid our search for the least bad among the hard answers if we stopped pretending that it does.