The Wrong Move

Cross-posted at Balkinization

This morning’s papers bring news from anonymous administration officials that “President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal.” See The Post’s story here.

While I always take such preview reports with a grain of salt (is it an official trial balloon, or an unofficial attempt to sway the debate the other way?), it’s hard to let this one go by. If the reports are true, the President is getting some unfortunate advice. And is at risk of losing the best chance of getting KSM’s case off the front pages before the 2012 elections.

The reasons why federal criminal prosecution is the right answer for KSM have been set forth well and in detail elsewhere, and I generally won’t recapitulate them here. The arguments seem already to have persuaded the President’s top “advisers”: the Attorney General, who had announced plans to try KSM in the criminal courts in New York, and the Vice President, who said just two weeks ago that “[w]e have no doubt the best, most effective legal way to get his guy behind bars for the longest time and get the most information with the most certainty is in an Article Three court.” The Secretary of Defense has likewise rejected the notion that the President should be precluded from pursuing civilian trials where appropriate. See this joint letter from Secretaries Holder and Gates, noting that “we ensure that all relevant factors are carefully considered when determining the appropriate forum in which to try a particular case.”

So what’s driving the shift? Most reports suggest that the Administration thinks if it capitulates on the KSM trial, Sen. Lindsey Graham will help the White House to win the funding and legal authority it now needs from Congress to close Guantanamo – a political motive in the strictest sense of the term. On that score, I guess count me skeptical that any Senator has the power to get a majority of members of both houses of Congress to vote in favor of allowing any Gitmo detainees to be brought to the United States for detention in an election year. But who knows?

The bigger looming danger is on the legal front. It’s easy to start with the historical odds that a post-9/11 trial before a military commission will founder. (The federal courts stunning track record of success in prosecuting terrorism cases of this kind only gets more impressive when one compares it to the record of even completed cases before the old military commissions). But maybe more important, if the Administration shifts gears now – worse, if the President overrides the very public recommendation of his Attorney General – it hands defense counsel a much stronger argument against the legitimacy of commission trials than they already had. Namely, the argument that the Executive’s choice between Article I commissions and Article III courts is constrained by no principle in law – no finding of a state of armed conflict, no international law-based set of charging offenses, no even military determination of necessity (given that Holder and Gates “carefully considered… all relevant factors” in making the KSM-civilian-trial decision the first time) – but is rather a pure question of expediency, a choice that can depend equally on whether the defendant committed a war crime as on whether the defendant’s Senator can deliver a vote on, say, health care. (That the putative vote in this case happens to be about detainee issues rather than any other voting issue of congressional concern doesn’t seem to me to make a difference in assessing the legality, or not, of the Administration’s basis for choosing a military trial over a civilian court.)

You might accept or not my argument that selection between forums on such a basis raises a constitutional question (see here or my Senate testimony here). But it would be a mistake to think the courts don’t care about atmospherics such as this. Indeed, I was this morning recalling the reaction by the Fourth Circuit Court of Appeals (in an opinion authored by conservative judge (and once thought Supreme Court contender) Michael Luttig) after the Bush Administration announced its intention to try Jose Padilla before federal criminal court after maintaining before – and successfully persuading – the Fourth Circuit that national security necessity required the President to have the power to hold Padilla as an “enemy combatant” in the “war on terror.” The issues were of course different there. The question involved detention power, not trial forum per se; and the Bush Administration was actively aiming to avoid renewed Supreme Court review of the Padilla case, a case it by then appeared likely to lose. But Judge Luttig’s apoplexy seems worth remembering as the Administration gears up for the mammoth litigation sure to follow an attempt to prosecute KSM before yet another set of military commissions:

“The government cannot be seen as conducting litigation with the enormous implications of this litigation — litigation imbued with significant public interest — in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound…. [A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”