The Wrong Move

by Deborah Pearlstein

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.”

7 Responses

  1. Response…
    Wrong move also because the military commissions do not have lawful jurisdiction under relevant international law that trumps the MCA and because they discriminate on the basis of national origin (only aliens) in violation of various treaties.  See Amicus Brief on these points at


  2. You need judicial forms with judicial norms a la Justice Jackson and the Military Commission in this case is as Jordan has said. Otherwise its just political theater and a show trial. America is better than that – or at least should be whatever Lindsay Graham (who has a stake in vindicating the cynical Military Commissions he put in place after Hamdan) or Peter King (New York politics and NIMBY) says.  NIMBY games for the guys who did 9/11! Amazing!

  3. After this nonsense with the head games of the New York people came out, I suggested that we have the KSM trial here in Toledo.  Because, we are not wimps in Toledo. I want him convicted just like everyone else, but after a truly fair trial – not some shenanigan Military Commission. 

    I learned that because of the security setup at Toledo that would not work.  So be it – a good reason.  As we learned at a conference here a couple of weeks ago, you could put the whole trial on at Governors island calling it an annex of the Southern District of New York with your SCIFS and your whatevere security spaces.

    9/11 happened in New York City, it was painful, and trying to hide the trial somewhere else is just chicken manure.  Message to the President’s men and women.


  4. Bush critics applauded the (apparently political) decision to halt the military commissions and throw all the cases in all the courts back into a decision making process. When that process generated the (apparently political) decision to transfer some individuals, notably KSM, from the military commission system to the criminal justice system, many like Deborah applauded the process.

    Today it is suggested that a new (apparently political) decision has reversed that prior decision and might now transfer KSM back to the military justice system. Yet somehow this second apparently political decision is inherently suspect and improper, although the prior apparently political decision was bold and a triumph.

    The only thing that differentiates the transfer from military to civilian from the decision to transfer from civilian to military is that some think one decision is right and the other is wrong. You are certainly free to argue in favor of one outcome or the other, but this post is an attack on the process and not overtly about the decision. In that context, it is unreasonable to attack a process only when it yields an outcome you disagree with, while applauding the same process when it produces the outcome you prefer.

    Padilla was engaged in civil litigation challenging the government’s right to detain him. Luttig had written the Fourth Circuit’s decision in favor of the government’s position that his detention was legal. Then the government proposed to release him from military custody and transfer him to the civilian justice system to answer for crimes committed years earlier when he was a civilian in Miami.

    It is not clear that the government needed any approval either to release Padilla from military custody or to arrest him and transfer him to Miami. However, that action on its own would not prevent the Supreme Court from granting Cert to review the prior decision. Luttig legitimately objected to the government’s “emergency” motion to try and cut off a Supreme Court review of his decision by withdrawing it before Cert was granted. Luttig found that the case had been decided, that nothing had changed, and so it was no longer before his court to approve or withdraw. It would be up to the Supreme Court to decide what happened next.

    Luttig’s comment is not about whether the decision to release Padilla from military custody and transfer him to civilian justice was right or wrong, whether it was decided based on a good process or a bad process. He was concerned that the rush to, on an emergency basis, short circuit the Supreme Court’s decision to accept or reject the appeal was inappropriate. However, since there is no emergency here, no Supreme Court review to block, and nobody can call the year long attempt to find an appropriate legal venue a “rush” job, the problems he comments on have nothing to do with the current question.

  5. I agree that this decision would be problematic from a policy and political perspective.  I disagree with Deborah, Jordan and Ben regarding the facial legality of the use of MCA tribunals even in this context (though I reserve the right to take issue with certain aspects of them). 

    Deborah may be right that some judges might  allow the factual history (or “atmospheric” issues) rather than the law sway their opinion.  That would itself be unfortunate and bring the “rule of law” into question.  The history of this jurisdictional schizophrenia should only matter if a judge believes that the military necessity supporting military commissions requires an “imperative” necessity, rather than simple consistency with relevant international or a superseding domestic law.  With regard to belligerents/combatants, the Supreme Court has historically taken the latter view (Quirin, Yamashita, etc.).

    I would appreciate it if Jordan could explain how any international legal obligation of the United States could “trump” a later-in-time, inconsistent domestic statute from a U.S. constitutional perspective.  I am paraphrasing but it was Louis Henkin who said that the U.S. possesses the [constitutional] power, but not the [international] right, to violate its international obligations.  Perhaps I misunderstand the argument being offered.

    It is telling that the administration is now chock full of lawyers and academics with prestigious pedigrees who apparently think this decision would be defensible/constitutional — or are (I suppose) violating their oaths of office to support that very document.  I take the view that such an oath does not permit one to advocate a view on behalf of a government client that one actually finds to be repugnant to that document.  The duty of zealous representation does not trump one’s oath of office.  Such a situation should be one a lawyer finds “repugnant” and require withdrawal from representation.

  6. Response…
    John: you’ll have to read the brief.  First, there is the Charming Betsy rule (interpret consistently), then if one cannot, there is the Cook rule before the last in time rule even comes into play (Congress must express and clear and unequivocal intent to obviate a particular treaty or CIL — in the MCA, probably only use of Geneva Convs. for “actions”?), and then there are the two exceptions to the last in time rule that are based in Supreme Court cases and other fed. cases.  So, Hamdan’s recognitions about what is required under GC 3 still apply.  And, of coursse, then there is the equality of treatment stuff.

  7. Jordan,

    Thanks for the clarification.  While I agree with you that one must first resort to Charming Betsy before one reaches the later-in-time rule, let’s just say I disagree with your reading of precedent in other respects.  We can discuss all of that at a later date though.


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