By Mat Trachok, NSJ Staff Editor –
On April 19th, Professors Jack Goldsmith and Phil Heymann of Harvard Law School debated what the Obama administration should do with alleged 9/11 mastermind Khalid Sheikh Mohammed (KSM). According to both Goldsmith and Heymann, the United States has three options available: it can try KSM before a military commission, it can try him in a civilian court, or it can continue to hold him in military detention. Both professors agreed that trying KSM before a military commission was the worst option. However, they also agreed that trying him in a civilian court was not a much better option. In the end, both argued for what they consider to be the least-bad option available: Heymann argued that the United States should try KSM in a civilian court or extradite him, and Goldsmith argued that the United States should continue to hold KSM in military detention.
Goldsmith and Heymann agreed that trying KSM before a military commission would be the worst of the three approaches. According to both professors, military commissions do not offer any benefits that would not be available in a civilian trial. First, while the procedural differences of military commissions (e.g., the admissibility of hearsay evidence) favor prosecutors, both Goldsmith and Heymann expressed certitude that KSM would be convicted in a civilian trial. Second, while trying KSM on a military base would be safer than trying him in an urban area, it is possible to hold a civilian trial on a military base (provided the base was within the appropriate venue).
In addition to not offering any special benefits, trying KSM before a military commission would be costly for the United States in three ways. First, as both Goldsmith and Heymann pointed out, the United States’ democratic allies, the Muslim world, and the American Left see military commissions as illegitimate show trials. Second, both Goldsmith and Heymann agreed that any military commission trying KSM would be hampered by endless appeals over novel legal issues. Finally, Heymann argued that trying suspects before a military commission at will would create a slippery slope: it is unclear who would decide whether future suspects were to entitled to a full trial or not and what criteria such decisions would be based on.
Goldsmith and Heymann also agreed that trying KSM in a civilian court would not be much better than trying him before a military commission because the world would not view a civilian trial as substantially more legitimate. Both noted that because the Obama administration chose which suspects to try in civilian courts based on ease of conviction and because the administration has insisted that, even if KSM were acquitted, he would not be released, it would be easy to criticize any trial as a show trial. Heymann also argued that because over half of the world’s Muslim population does not believe that al-Qaeda was responsible for the 9/11 terrorist attacks, even the best trial would appear illegitimate to many in the Muslim world.
In spite of the costs associated with a civil trial, Heymann argued that the United States should try KSM in a civilian court and hope that he enters a proud guilty plea. Heymann believes that only a guilty plea would convince the majority of the world’s Muslim population that al-Qaeda was behind the terrorist attacks on 9/11. He further argued that if the Obama administration does try KSM in a civilian court, it should allow the judge to extend the Speedy Trial Act to allow the government three to five years within which to gather useable evidence (i.e., evidence not obtained through coercive interrogation). If the government cannot find such evidence, Heymann continued, the United States should extradite KSM to a country that would be willing to detain him.
While Goldsmith agreed with Heymann that a guilty plea by KSM would be useful to the United States, he pointed out that, toward the end of President Bush’s second term, KSM offered to enter a guilty plea before a military commission, but was denied the opportunity when the current administration decided to transfer his to a federal district court. According to Goldsmith, KSM no longer appears willing to enter such a plea, and it seems unlikely that he will ever offer to do so again.
Goldsmith concluded that the least-bad option available to the Obama administration is continued military detention. He argued that because the United States is at war with al-Qaeda, there is no doubt that it would be lawful under both domestic and international law to detain KSM until the end of that war, even though KSM will likely die before that day comes. Goldsmith admitted that there are legitimacy problems with continuing to hold KSM without a trial, but he pointed out that all three options available to the United States have similar legitimacy problems. He argued that the benefits of continued military detention lie in its entailment of fewer political costs and difficulties than the other two options.
Although Goldsmith argued that continued military detention was the least-bad option available, he also stated that he believes that the administration will choose to try KSM. And if it does so, he agreed with Heymann that it should try him in a civilian court.
Image courtesy of Christopher Dydyk, © 2010