Guantanamo: Prosecutions

Or Maybe Not

By Benjamin Wittes
Wednesday, April 6, 2011, 10:38 AM

Luis M. Dickson's truly heroic effort to chart a path by which the Obama administration could conceivably live under the law as articulated by the New York Times editorial board seems, alas, to have hit a snag. International criminal law expert Kevin Jon Heller writes in to say that,

I'm afraid you don't have a winner for your contest.  The ICC's temporal jurisdiction began on 1 July 2002 and is not retroactive, so it could not prosecute KSM for the 9/11 attacks.  The convoluted sequence your reader suggests thus rests on a basic impossibility--no referral of KSM to the Court is possible.

I've queried Mr. Dickson as to whether his plan is salvagable. If not, the contest will go on.

UPDATE: Luis Dickson responds--and concedes: "I've given it a great deal of thought, but Mr. Heller's clearly right, and I don't see any plausible way out. Certainly the path charted might work for any high-value detainees after 1 July 2002, but the jurisdictional issue for KSM et. al. is pretty cut and dry against the plan."