Two national security legal experts have proposed a novel solution to the ongoing debate over where to try alleged Sept. 11 mastermind Khalid Sheikh Mohammed and his co-conspirators: don’t try him at all.
Benjamin Wittes (Brookings)
In a column for The Washington Post, dated Friday but posted on the newspaper’s Web site Thursday, Benjamin Wittes and Jack Goldsmith argued that the United States should forgo a trial for KSM and instead focus on the issue of terrorist detention. Wittes is a fellow at the Brookings Institution and Goldsmith, now a professor at Harvard Law School, served as Assistant Attorney General for the Office of Legal Counsel during the George W. Bush administration. In the column, Wittes and Goldsmith suggest that the actual venue for the trial is unimportant now that both the Obama administration and Republicans agree that military detention is acceptable.
They write:
The politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.
The question of trial forum is important in certain cases. Before the Obama administration embraced the propriety of military detention, it was important for Mohammed too. If one intends to hold people only pursuant to criminal charges, as some in the Obama administration once suggested, the nature of those charges and the forum for them matter a lot.
But these issues matter much less since Obama made clear — to the anger of the left and to assenting nods from just about everyone else — that he reserves the right to detain people outside of the criminal justice system.
Jack Goldsmith (Harvard)
Instead, Wittes and Goldsmith propose that Republicans and the Obama administration concentrate on the larger issue of indefinite terrorist detention.
“Eight and a half years after the Sept. 11 attacks, it is time to be realistic about terrorist detention,” the pair wrote. “Instead of expending great energy on a battle over the proper forum for an unnecessary trial of Mohammed and his associates, both sides would do well instead to define the contours of the detention system that will, for the foreseeable future, continue to do the heavy lifting in incapacitating terrorists.”
Read the full column here.
