A Thought Experiment for Article III Skeptics

By Benjamin Wittes
Friday, October 15, 2010, 5:28 PM

Everyone seems to have very strong views about where to try KSM. I don't. I think there's a defensible case for trying him in a military commission. I think there's a defensible case for trying him in a civilian court. I think there's a defensible case for some creative hybrid arrangement. And as I argued here with Jack, I also think the best option may be--for now, at least--not to try him at all but to keep him in military detention. The truth of the matter is that I support any arrangement the political system can get behind that is effective and that is reconcilable with the law--and I'd be willing to be pretty flexible in my efforts at reconciliation. I am, to put it bluntly, completely without principle on this matter.

In fact, I want to make an affirmative argument against principle here--specifically, against the conviction that is now so prevalent in conservative circles that military commissions represent the only acceptable trial venue for KSM. This idea is prevalent not merely among yahoos but among serious people like, for example, Sen. Lindsey Graham. The more I think about it, the more I think it's wrong. And it is contributing to a policy paralysis that is dangerous.

A few months ago, David Kris--the assistant attorney general for the National Security Division--gave a speech at the Brookings Institution in which he addressed in general terms the relative strengths and weaknesses of the military commission and criminal justice systems from a prosecutorial perspective. Kris argued that the military commissions offer advantages with respect to: "First, proof requirements; second, rules governing admissibility of confessions; third, rules governing closure of the courtroom; fourth, hearsay rules; and, fifth, classified evidence rules." But the civilian system, he argued, has advantages too, and some of them might have high tactical salience in any given case: "first, certainty and finality; second, breadth of scope; third, incentives for cooperation; fourth, sentencing. . . . and, fifth, foreign support." In short, Kris argued, the criminal justice system is "sometimes the right tool. And whether it’s the right tool in any given case depends in large part on the specific facts of that case" (my emphasis).

The analysis of what the right tool is in any given case, particularly one as complicated as the 9/11 conspiracy, is enormously fact-intensive. It involves a complex understanding of what crimes one could charge in military commissions versus in federal court and what evidence the government has and how each individual piece of evidence would fare under federal court rules and under military commission rules. So here's my thought experiement for conservatives and others who are committed to the use of military commissions:

Imagine for a moment that such an analysis had taken place with respect to KSM. And imagine that it had been dispassionate and rigorous. And imagine that the prosecutors who conducted it had concluded that they have more latitude to bring a strong case and more certainty of success in that case in a shorter period of time in federal court than they do in a military commission. What then? Do you still, as an a priori matter, favor trial in a military commission because that's the tough option? Do you still favor trial in a military commission because terrorists are combatants and this is a war and that's where combatants belong? Or would you be prepared to reconsider if you were convinced that the specifics of any given case--the facts, the evidence, and the charges lined up against the details of the rules of the respective tribunals--favored the federal system?

For me, this is an easy question: I am, as I say, unprincipled and favor the use in any given case of the system most likely to work best. I have no ideological or philosophical commitment to the use of Article III courts. But I'm concerned that many on the Right are too philosophically committed to their non-use. Mark Thiessen's column the other day is a good example. As I argued before, to insist on the obviousness of military commissions, Thiessen has to resort to a dramatic overstatement of the setback the government suffered in Ghailani and to a frank misstatement of the rules governing pleas in military commissions. But this only begs an important question the Right needs to confront: What should happen, in a given case, if the commissions do not offer the best answer?