The Khalid Sheikh Mohammed trial

A number of recent articles have provided interesting commentary on the upcoming trial of alleged 9-11 plotter Khalid Shheikh Mohammed in an American federal court:

Given everything that has already happened, it is very hard to see how this can have a good outcome. The trial cannot be fair – since there have been so many rights and due process violations, and no impartial jury can be found – and the precedent seems highly likely to make bad law.

Slate contributor David Feige is probably right in summing up the likely outcome:

In the end, KSM will be convicted and America will declare the case a great victory for process, openness, and ordinary criminal procedure. Bringing KSM to trial in New York will still be far better than any of the available alternatives. But the toll his torture and imprisonment has already taken, and the price the bad law his defense will create will exact, will become part of the folly of our post-9/11 madness.

Given the situation they inherited, the Obama administration may not be able to do any better. Still, it is worrisome to think what the future consequences of this may be.

[Update: 12 February 2010] Due to the opposition he has encountered, Obama has abandoned plans to give KSM a civilian trial in New York. Disappointing.

Author: Milan

In the spring of 2005, I graduated from the University of British Columbia with a degree in International Relations and a general focus in the area of environmental politics. In the fall of 2005, I began reading for an M.Phil in IR at Wadham College, Oxford. Outside school, I am very interested in photography, writing, and the outdoors. I am writing this blog to keep in touch with friends and family around the world, provide a more personal view of graduate student life in Oxford, and pass on some lessons I've learned here.

80 thoughts on “The Khalid Sheikh Mohammed trial”

  1. “Given the situation they inherited, the Obama administration may not be able to do any better. Still, it is worrisome to think what the future consequences of this may be.”

    What an unprincipled Obama defense. The right thing to do is not complicated – it’s called the rule of law. Obama uses the term “the rule of law” enough, you’d think he’d look it up. It means everyone is equal before the law. It means treat everyone with the basic rights they give U.S. citizens – evidence must be collected, no imprisonment without charges, etc… Anything less the slow encroachment of fascism.

  2. What would be the right thing to do if the Army arrested a U.S. citizen without reasonable grounds, tortured him or her, and kept her confined in an offshore prison for years?

    How about, multi million dollar compensation, presidential apology, etc?

  3. International law is actually not particularly ambiguous about the status of the members of al Qaeda. The Geneva Conventions do not apply to them because they have not adhered to a fundamental requirement of the Geneva Conventions, namely, identifying themselves as soldiers of an army. Doing so does not mean they must wear a uniform. The postwar Geneva Conventions make room for partisans, something older versions of the conventions did not. A partisan is not a uniformed fighter, but he must wear some form of insignia identifying himself as a soldier to enjoy the conventions’ protections. As Article 4.1.6 puts it, prisoners of war include “Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.” The Geneva Conventions of 1949 does not mention, nor provide protection to, civilians attacking foreign countries without openly carrying arms.

    The reasoning behind this is important. During the Franco-Prussian war, French franc-tireurs fired on Prussian soldiers. Ununiformed and without insignia, they melded into the crowd. It was impossible for the Prussians to distinguish between civilians and soldiers, so they fired on both, and civilian casualties resulted. The framers of the Geneva Conventions held the franc-tireurs, not the Prussian soldiers, responsible for the casualties. Their failure to be in uniform forced the Prussians to defend themselves at the cost of civilian lives. The franc-tireurs were seen as using civilians as camouflage. This was regarded as outside the rules of war, and those who carried out such acts were seen as not protected by the conventions. They were not soldiers, and were not to be treated as such.”

  4. After Guantánamo
    Trials to come

    Nov 19th 2009
    From The Economist print edition
    Tough choices as a deadline is missed

    “But many are worried about Mr Mohammed’s trial. Putting it in New York may make the city a bigger terrorist target; some may question whether a jury of New Yorkers can provide a fair trial. Since he was among a small number of prisoners subjected to repeated waterboarding, a technique Mr Holder calls torture, the charges may not stick, though Justice Department officials think they have enough untainted evidence to secure conviction. And Mr Mohammed and his alleged helpers may use open court to proclaim violent jihad against America; he has said he would welcome the martyrdom of a death sentence.

    Some 40 Guantánamo inmates may face trial of some sort. About 90 have been cleared for release, though officials struggle to find countries willing to take them. But Mr Obama has yet to decide what to do with a hard core deemed unfit for either release or trial. The smart money is now on an under-used prison in rural Illinois to house them. Guantánamo by another name?”

  5. Milan, I seem to remember a club you started that was opposed to torture. Is there any internet-evidence of that which could be linked to this post?

  6. What would be the right thing to do if the Army arrested a U.S. citizen without reasonable grounds, tortured him or her, and kept her confined in an offshore prison for years?

    How about, multi million dollar compensation, presidential apology, etc?

    It’s highly likely, that despite having his rights violated, KSM is a murderer, terrorist, etc. Also likely is that he was arrested on reasonable grounds. Therefore I’d have to agree with Milan that the situation is cocked up. What do you do? You don’t want to let a terrorist free (you certainly don’t want to reward him with freedom, money and an apology), but it’s probably unlikely he can have a fair trial.

    As an aside to all the legal stuff, I wonder what sort of shape he’s in. I’ve read rumours that the waterboarding brain-damaged him.

  7. What if I steal a car, crash it into another car, but the police muck up the investigation? I go free. The rule of law means investigatory process matters. Why should it be any different for terrorists? It’s just a crime, like any other crime. We don’t put people in jail because we think they are likely to commit a crime in the future.

    The idea that there is one kind of crime that subjects you to the ban, that puts you outside the rule of law, is exactly what’s wrong with the concept of terrorism, and why it’s good that Obama has tried to stop using the language.

  8. KSM is not in a legal situation akin to that of a US citizen arrested and held under US law.

    As the first Stratfor article explains well, his legal status is not entirely clear.

  9. Also, being opposed to torture doesn’t create moral clarity here. Lots of deeply problematic things have already happened – so much so that a just resolution is not really possible.

    The question is, what is the best available option, both in terms of the specific case and in terms of the precedents that will be set? This trial seems unlikely to produce good outcomes on either front, but other options may be worse.

  10. “KSM is not in a legal situation akin to that of a US citizen arrested and held under US law.”

    The rule of law is not US law, it’s an idea – it means everyone is equal before the law. The rule of law doesn’t exist – people are not equal before the law because of citizenship. This is why citizenship must be abolished, but that’s still way off. What we can do now is in specific cases begin to not recognize citizenship – not by taking it away from citizens, but by treating non-citizens with the same rights we give citizens. This is demanded of us by the very idea of the rule of law – it is an inherent property of the idea, which is never fully instantiated because we rarely live up to the ideas we set out for ourselves.

    The incompleteness of the rule of law goes back at least as far as the Norman invasion (which brought the “rule of law” to england – there was literally one “rule of law” for Normans, and another for the English. Still, the idea of equality before the law eventually shows up the idea of different rules of law for different groups as basically wrong.

    Milan, you keep saying a just resolution is not possible, but I’ve offered one, and you have not offered arguments against it. This seems to be a deflecting move – useful in a debate, but not so great when you want the truth.

  11. I don’t think it is appropriate to treat KSM like an American citizen who was treated in the same way. His legal status – soldier, criminal, something else – is unclear, and the decision to change his treatment from military to civilian complicates things further. The rule of law is not something that exists outside of states, except insofar as there is clear international law on the conduct of civilians. Such law does prohibit the torture that was inflicted on KSM and others, but it does not make clear how they ought to be treated in criminal or civilian courts, what sort of rules of evidence should be used in relation to them, etc. The closest legal parallels are those of soldiers, partisans, and pirates: none of which is an especially good match.

    The court will clearly have to grapple with the applicable laws, but I agree with the Slate author that there is a high chance of setting bad precedents.

    As for the “apologize and give him millions of dollars” suggestion, that also seems deeply inappropriate. While his mistreatment was a mistake, I don’t think such an action would meaningfully correct for it, and it would have other negative consequences.

    Certainly, this whole debacle makes me more sympathetic to why Obama is using so many UAV missile strikes in Pakistan.

  12. “The rule of law is not something that exists outside of states”

    The rule of law is an idea. Like every other idea, it exists outside of states. And, it can be applied in states. And, it can be applied in states in a way that is contradictory to its own nature – see the English period between 1066 and the signing of the Magna Carta – there was “the rule of law” – but not the rule of law for all. Initially there was different law for English and the Normans (but in each category, equal law for farmers and knights – this was the new thing). Then, the English/Norman thing dropped out. And then, when the King signed the Magna Carta, the King is included in the “for all” of the rule of law. So, the idea of the rule of the law, which contains the “for all”, doesn’t always apply the “for all” to “all”. There you go – proof that the idea exceeds its application, and that its application can become closer to the idea over time (moral progress). And by extension, the idea has reality beyond its immediate concrete manifestations.

  13. “While his mistreatment was a mistake, I don’t think such an action would meaningfully correct for it, and it would have other negative consequences.”

    Someone has been tortured. You don’t think they should be financially compensated? What other kind of compensation would you offer? Saying there needs to be no compensation means there is no debt, means that no wrong has been committed against him. You can’t seriously divide whether torture is wrong from what you do with someone after they’ve been tortured. If something is wrong, you have to do something about it when it happens.

    I think the most appropriate step going forward for the Obama administration would be something akin to the de-Nazification of Germany post WW2, where people who committed war crimes under Nazi orders were to some extent held accountable for their actions. I’m not saying we should hang everyone who has committed torture, but they should be fired and prevented from entering public service or public office.

  14. He tortured (by various means, fire, forced suicide, beheading) thousands of people. Perhaps he is the one who should be forking over the cash.

  15. Maybe the U.S. should hand the investigation over to a state which hasn’t tortured the alleged criminal. U.S. simply has no legitimacy in the realm of international justice. If we want to talk about who is responsible for the deaths of thousands of people, how about Bush 1, for supporting Hussein during the worst periods of chemical attacks on civilians during the late 80s?

  16. You can make the argument that any US president has blood on their hands, but it’s irrelevant to whether or not KSM also does. Your idea that they should hand him over to a non US court seems reasonable, but it’s easy to see why they won’t. They want to make sure they get the bastard.

  17. It’s not irrelevant. Justice isn’t about people getting what’s coming to them. It’s about establishing authorities from which what’s coming to them can be fairly established. Hypocrisy, which I so dislike as a supreme value in other situations, is very important in law. The rule of law is a good value, one we should support. Remember Nixon-Frost, “When the president does it, it’s not illegal!” – well it looks like Nixon was right Unless we hold US Presidents to the same moral standards as we hold captured terrorists, we don’t have the rule of law.

    Handing the alleged criminal over to a foreign court would be one way of dealing with the hypocrisy of American justice. Another would be de-Nazification.

  18. One thing to be recalled is that KSM is not your average terrorist suspect in custody. A credible case can be made that he has committed crimes against humanity. As such, there is more scope to try him under international law.

    Trying your average Al Qaeda member in a civilian court may be inappropriate and impossible. Firstly, their status under international law isn’t entirely clear. It is possible that, like sabateurs, it is basically up to individual states to decide how to deal with them. Secondly, evidence against them is almost never collected at the standards used by criminal courts. Doing so is quite possibly impossible in places like Afghanistan, Sudan, or Yemen. Also, if the evidence comes from a confidential intelligence source (either human or signals intelligence), providing it to a civilian court could eliminate the usefulness of that source in the future.

  19. (Note also that the International Criminal Court can only prosecute crimes committed after 1 July 2002.

    Also: “The ICC can generally exercise jurisdiction only in cases where the accused is a national of a state party, the alleged crime took place on the territory of a state party, or a situation is referred to the court by the United Nations Security Council. The court is designed to complement existing national judicial systems: it can exercise its jurisdiction only when national courts are unwilling or unable to investigate or prosecute such crimes. Primary responsibility to investigate and punish crimes is therefore left to individual states.”)

  20. The left’s hypocritical silence on American drones

    BY Josh Greenman
    Friday, November 20th 2009, 4:00 AM

    If you’re morally opposed to putting Khalid Shaikh Mohammed through a military tribunal and believe that Attorney General Eric Holder’s decision to try him in civilian court is a great expression of democratic values, you ought to be up in arms about this: In your name, at President Obama’s orders, our country is arbitrarily killing people in a foreign land. By the hundreds.

    Those same voices are not insisting we print Miranda warnings on the ammunition that our drones drop from the sky in Pakistan. They are not insisting we give the victims a chance to prove their innocence or appeal their convictions. Or that we give the civilian bystanders a chance to get out of the way.

    And with good reason: In the case of American predator drone attacks, we tacitly acknowledge realities that seem to have escaped millions of Americans who have celebrated the decision to put KSM through civilian courts.

    Namely, we understand that wars are messy.

    We understand that in the context of a struggle in which the enemy’s goal is something like the extinction of our nation, or at least the murder of our people by the thousands, it is folly to apply civilian rules and standards to combatants. We understand that those tasked to defend us must sometimes do brutal things to stop the enemy from potentially doing worse to us. Indeed, the very object of most wars nowadays (now that we’re past the days of conquering nations and claiming territory) is killing people who might kill you.

  21. Holder Defends Decision to Use U.S. Court for 9/11 Trial

    Published: November 18, 2009

    Republicans raised the concern that Mr. Mohammed would use a trial in New York as a platform for his Islamist ideology, creating a circus atmosphere. They also said that a civilian trial would risk the disclosure of classified intelligence sources and methods.

    But Mr. Holder said that keeping the trial in a military commission would not avoid those risks. He said that judges in both kinds of trials have very similar authority for protecting sensitive information and for controlling unruly defendants.

    “I’m not scared of what Khalid Shaikh Mohammed has to say at trial,” Mr. Holder said. “And no one else needs to be afraid either. I have every confidence that the nation and the world will see him for the coward that he is.”

    Senators of both parties also pressed Mr. Holder to say what would happen if Mr. Mohammed or another detainee considered to be a dangerous terrorist was acquitted on a technicality or given a short sentence. Mr. Holder has said he will direct prosecutors to seek a death sentence in the Sept. 11 case.

    Other Justice Department officials have said that even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a “combatant” under the laws of war. But Mr. Holder largely sidestepped such questions, instead simply asserting that he was confident that Mr. Mohammed would be convicted.

  22. November 18, 2009 4:13 PM
    KSM Trial: A Confederacy for Dunces

    Posted by Andrew Cohen

    The truth is that the Obama Administration has had plenty of opportunities to more fully expose any misfeasance attributed to men like John Yoo and David Addington and Dick Cheney and Jay Bybee. And, in almost all circumstances, Democratic officials have protected their Republican predecessors. Yes, the White House released certain embarrassing memos a few months ago that gave us more information about the formation of Bush-era torture policies. But Obama has consistently refused to authorize a “truth” commission to look into the matter, has invoked privileges to protect evidence, and has left his former colleagues in the Congress to publicize their own investigations into how we became, for a few years, a nation that tortured people.

    There is no more an active conspiracy to indict the past regime than there is, necessarily, an “unprecedented danger” to our security brought about by the Mohammed case. The mayor of New York, who will be in office when the trial gets underway, says the City is ready for the challenge. So does the police commissioner. Both before and after 9/11, Manhattan has been a secure venue for terrorism trials and a good many of the 300 foreign and domestic terrorists currently sitting in our prisons came through the Southern District of New York.

    Classified material? Critics of a civilian trial say it will give Mohammed and his colleagues all sorts of secrets—another form of the security argument. But federal judges have long used the Classified Information Procedures Act to govern the use (or not) of classified information at trial. Holder on Wednesday morning reminded the Senate Judiciary Committee that the Congress “recently adopted” standards for the military commissions based upon the CIPA rules themselves. The idea that the civilian trials are going to be sieves while the tribunals were going to be sealed tight just doesn’t fly.

  23. Given the situation they inherited, the Obama administration may not be able to do any better.

    To be able to say that, they’d have to at least try.

  24. If there is no chance of Khalid Sheikh Mohammed being acquitted, then this isn’t going to be a real trial. The same is true if there is no chance of the judge throwing it out due to evidence or bias concerns.

    Anything other than a conviction would probably be a political disaster for the Obama administration. That is especially true since they couldn’t ever release the guy (except perhaps at risk of impeachment), which would make the trial look like a farce after the fact.

  25. They have many crimes they could try him for. I’m not particularly familiar with law, but couldn’t they basically ensure at least one conviction if they try him for his crimes one at a time (or some variation that’s not all of them at once)? He’s certainly guilty of many crimes, on the other hand I think there’s probably a real (but small) chance of him being acquitted. That’s what has a lot of people worried in the first place, and why there’s so much heat on Obama.

  26. They convicted Jose Padilla, this guy will be a walk in the park. It’s a foregone conclusion.

  27. Matt,

    One question is whether the whole trial should be thrown out, on the basis of misconduct that has already happened. For instance, being denied access to attorneys, being denied a speedy trial, etc. The entire prosecution could theoretically be thrown out for procedural violations, though I doubt any judge with career ambitions would choose that course of action.

  28. Eric Holder’s “opinion/prediction” is that, despite the trial outcome which could possibly get Khalid off on a technicality, he will spend the rest of his life in prison.

    By his very own words, he admits that this trial is a sham, totally devoid of even a speck of logic.

    That the many intelligent American citizens are watching their God-given and Constitutional rights being trodden on by imbeciles is truly pathetic. It appears we are gutless to stand up for ourselves.

  29. What would you propose they do instead?

    Release him back in Rawalpindi?

  30. They should hand him, and the evidence, over to a state which hasn’t pissed away its moral authority to dispense law.

  31. I agree with Tristan that terrorism is a crime that should be judged by the same standards as every other crime of comparative severity. Torture and right violation should, in this case and always, force the case out of court.

    It is amazing to me that we are so quick to cut off our own legs to see another man limp.

  32. What would you propose they do instead?

    Would he in his current state be in any shape to run around organizing any better than any other terrorist that is currently operating? Keeping in mind that they haven’t been waterboarded to the point of possible brain damage.

    The man would probably retire to a care home, eat oatmeal and make drawings all day.

  33. He is a genuinely dangerous guy. Just read through his biography if you doubt it.

    I don’t think any state would tolerate him as a member of their general population.

  34. I don’t think any state would tolerate him as a member of their general population.

    It is interesting to me that we don’t consider people who commit mass murder as automatically ‘insane’. Instead of sentencing him to death, why couldn’t we deal with deranged murderers by committing them to health care facilities for medication and therapy?

    It doesn’t have that satisfying ‘eye for an eye’ closure, but wouldn’t that be a reasonable way of keeping him in check, and not setting a terrible legal precedent for the United States? Also, doesn’t the guy need some serious medication?

  35. We don’t think of soldiers as being mass murderers or insane. He probably sees himself in that sort of light.

    Why do you think he needs medication?

  36. Why do you think he needs medication? Because he sees nothing wrong with killing people in the name of a fictional deity?

  37. No doubt about anger issues, but I doubt Prozac would be of much good here.

    Also, plenty of the people involved in capturing and trying him are probably quite devoted to the same fictional entity.

  38. Also, plenty of the people involved in capturing and trying him are probably quite devoted to the same fictional entity.

    Well, the thing about being involved in the administration or military of one of the most powerful countries in the world is that you get to set the rules for what’s appropriate and what’s not.

    It’s okey dokey to kill thousands of civilians in a fit of heady nationalism and religiosity, as long as they don’t hold American, or European Union citizenship.

    Let’s take for given that there is an absurd double standard that is employed here. Absurd double standards are how we judge who is really in power.

    Checking him into a mental institution seems like a good way of tucking him away, and also not setting an obscene right violating precedent.

  39. The disagreement here is between who you can target, how, and why. KSM has almost certainly violated international law, in terms of all these things.

    Do you think they should send all the Guantanamo inmates that other countries will not accept to mental institutions? That does not seem like a just outcome – rather, a different form of arbritrary detention without trial.

  40. It is a standard and likely true line to say every American president has violated international law to the point where the Nuremburg tribunal would, applying its principles consistently, have them all hanged.

    The US is not in a position to convict someone who they have violated international law towards, of crimes against international law. Hand them over to the Hague, or any institution that isn’t completely bankrupt.

  41. The ICC cannot try Khalid Sheikh Mohammed for much of what he is accused of: the 1993 World Trade Centre bombing. the Bojinka plot to blow up twelve airplanes in 1995, the 2000 millennium attack plots, September 11th, etc. They could prosecute for the Bali nightclub bombing of 2002, the failed bombing of American Airlines Flight 63, and the kidnapping and murder of Daniel Pearl.

    If your objection to a US trial is unlawful treatment of detainees, a British or Canadian court would also be tainted. A trial in Afghanistan or Pakistan would likely be even worse. Who has an “institution that isn’t completely bankrupt” and the willingness to prosecute KSM and others there?

  42. As for the Nuremberg precedent, that was for waging aggressive war. The 2003 Iraq war may qualify as aggressively launched, but it is largely an aberration among conflicts involving the US. The war in Afghanistan, the first Iraq War, the Korean war, and other military actions were authorized by the UN and sometimes otherwise justified under international law.

  43. Do you think they should send all the Guantanamo inmates that other countries will not accept to mental institutions? That does not seem like a just outcome – rather, a different form of arbritrary detention without trial

    Certainly not. Though if we are serious about the rights of real individuals, clearly there should be a singular case made for each and every detainee. I think looking for an ‘across-the-board’ get’ er done solution is anything but humanizing.

    If they were unlawfully detained and/or and were tortured – they should be released until there is a lawful and rights respecting way to try them.

    I’d rather die in a terrorist attack than live in a ‘safer’ world with little to no respect for civil rights.

  44. Milan, you’re right about not disregarding some problems because of others. The problem with respect to America is that the same authority which condemns this individual is in need of de-nazification.

  45. A lot of this comes down to pragmatism. If Obama tried hard to prosecute Bush-era officials for war crimes, it might bog down his administration to the point where it could achieve nothing else. Arguably, passing legislation on things like climate change and health care is more important.

  46. He isn’t waging aggressive war. American forces are there with the backing of the UN and the Afghan government.

  47. I read through most of the posts and have a couple of comments:

    1.) Innocent until proven guilty. I personally don’t think KSM is innocent but frankly none of us “blogosphere pundits” have anything other than second+ hand knowledge of “evidence”.

    2.) “Evidence” similarly is another term notably absent from the discussion thus far — oh, except for spoonfed jingoistic media generalizations of confessions he might have made after 182 waterboarding sessions (yeah, which why only the 183rd waterboarding was vindictive but all the others were “righteous”, yeah that’s it).

  48. There is also evidence from intelligence sources. For instance, the NSA had a tap on an important Al Qaeda satelite phone line, for several years (as documented in Matthew Aid’s book).

    One issue will be how evidence against KSM and others can be used in court, without compromising the sources and methods through which it was obtained.

  49. The KSM Trial Will Be Fair Enough
    And military detention is legit, too.
    By Jack Goldsmith
    Posted Tuesday, Dec. 1, 2009, at 10:38 AM ET

    The Obama administration’s decision to prosecute Khalid Sheikh Mohammed in a civilian court has brought charges from across the political spectrum that his trial will be unfair and thus illegitimate. Critics have articulated three separate concerns. With care, the government can overcome them all.

  50. “The Nuremberg Tribunal noted that military detention is “neither revenge nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war.” The purpose of military detention is not retribution or deterrence, but rather, as Justice Sandra Day O’Connor explained in the Hamdi case, “to prevent captured individuals from returning to the field of battle and taking up arms once again.” Because military detention is not criminal punishment, the double jeopardy clause would not ban such detention following acquittal or the end of a criminal sentence.

    The Obama administration must better explain the distinction between trial and detention. It should make clear that the purpose of trial is to ascertain guilt and (if the defendant is found guilty) to assess punishment, including, potentially, the death penalty. It should acknowledge that Mohammed can in theory be acquitted at trial, and that any post-acquittal detention would involve a separate process designed not for punishment but rather to prevent Mohammed from returning to battle. Criminal exoneration would not make Mohammed any less dangerous and thus would not affect the government’s independent authority to detain him until the end of the conflict—though the administration might acknowledge that a military detainee should receive better conditions of confinement than a convicted felon. “

  51. There is a difference between military detention during a war, and indefinite detention during an invented “war on terror”.

    Anyway, what we’re really seeing here and everywhere is the continual decay of the ideology of “the state” as having a justified monopoly on justice and violence.

  52. That’s an awfully broad conclusion to reach on the basis of this situation.

    Khalid Sheikh Mohammed and others have been mistreated, which complicates the process of putting them on trial. Also, international law on armed conflict is arguably poorly suited to dealing with combatants who aren’t part of national militaries.

    Going from that to claiming an erosion in the justification of the state as the sole legitimate user of force seems excessive. Surely delegating that authority to sub-state entities like criminal gangs or private military corporations is less desirable than leaving it vested in states, which simultaneously working to improve the conduct of states in many situations.

  53. “Surely delegating that authority to sub-state entities like criminal gangs or private military corporations is less desirable than leaving it vested in states”

    Delegating? Who is doing the delegating?

    I didn’t say that the erosion of the state would produce good results. I’m not a utilitarian, and even if I was this isn’t a moral argument but a descriptive claim. I’m saying that situations like this, where we have values that we like but no way to live up to them, shows the inadequacy of states with respect to the values that serve to justify them.

  54. Hardly anybody argues that any violence employed by a state is legitimate. Rather, it is generally acknowledged that states fall into the category of entities that can legitimately use violence in some ways and circumstances – as individual human beings can do in self defence.

  55. “Hardly anybody argues that any violence employed by a state is legitimate.”

    People argue that this trial is a legitimate exercise of violence, despite the fact we can’t justify it with our ideals. This trial is the paradigmatic example of the self-justifying nature of state power. “Well Obama just can’t do any better” – if Obama can’t do any better, or rather, if the US can’t do any better, in other words, if it can’t live up to its own ideal of itself, maybe we should get rid of it? Or at least reform it, to the point where it can live up to the ideals which justify it.

  56. Arguably, such reform has already happened – in terms of issuing a clear ban on torture, restricting what the CIA can do, etc.

    There is a distinction between setting up acceptable policies for future actions and dealing with those who behaved inappropriately in the past. Charging the people who tortured detainees in the past would not make the trials of those detainees any more fair or unproblematic.

  57. The question of detention is a tricky one.

    While the war in Afghanistan will eventually end, members of Al Qaeda were never uniformed soldiers of theirs, to be returned home when hostilities cease. Indeed, there is probably nowhere they could be returned to in that sense. One possibility is to treat them like pirates: a crime that any state can prosecute, though that leaves open the question of what to do with them if they are acquitted.

  58. If the Soviets were in Afghanistan, and the situation were exactly as it is today, would we not be demanding that the war end today?

  59. If it was Russians who predominated, within an international coalition approved by the UN Security Council and the present government of Afghanistan?

  60. No, if the situation was reversed. Which means the “international coalition” would be states we consider an enemy alliance, i.e. the Warsaw Pact.

    And the “present government” would certainly “support” the war, but just as now, the present government would be a collection of warlords.

  61. I don’t see much point to this hypothetical. It confuses rather than illuminates the questions involved. In any case, it has little to do with these civilian trials.

  62. Obama’s Betrayal
    His Guantanamo policy violates the principle of freedom.
    By Owen FissP
    osted Friday, Dec. 4, 2009, at 10:41 AM ET

    The firestorm of criticism over the trial of Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, should not obscure a darker truth: Trial is only one prong of Obama’s Guantanamo strategy. Some of the Guantanamo prisoners, including those who have been detained for seven or eight years, will remain imprisoned indefinitely with no prospects of ever seeing the inside of a courtroom. Obama’s much-lauded intention to close Guantanamo will not change the fate of these prisoners, who will be transferred to other prisons in the United States or abroad, and as a result, the president will perpetuate one of the most troubling policies of the Bush administration. If Obama does not repudiate this policy, it will define what the government can do in the future.

    Imprisonment without trial is an affront to the Constitution and is at odds with Obama’s proclaimed commitment to be faithful to the rule of law and to fight terrorism within the terms of the Constitution. At issue is nothing less than one of the core values of our constitutional system—the principle of freedom. That principle is enshrined in our political traditions and stands as one of our greatest achievements as a nation. It is rooted in the Fifth Amendment’s requirement that the liberty of no person shall be denied without due process of law. This provision of the Bill of Rights, along with the guarantee against the suspension of the writ of habeas corpus, denies the government the power to incarcerate anyone who had not been charged with a crime and swiftly brought to trial.

  63. Quantum of Lawless
    The critics of the KSM trial can’t ask for more law and less law at the same time.
    By Dahlia Lithwick
    Posted Sunday, Dec. 6, 2009, at 7:38 AM ET

    To hear the critics of the decision to try Khalid Sheikh Mohammed and some of his 9/11 confederates in open court tell it, the central problem with federal criminal law is that there just isn’t enough of it. And so we hear that the KSM prosecution will degenerate into a “circus” and a “show trial,” as if hundreds of terrorists have not already been tried and convicted in U.S. civilian courts, including the perpetrators of the1993 World Trade Center and 1998 African embassy attacks.

    We hear of the dire security risks of allowing classified information to pour forth unchecked from federal courthouses, as though there are no judicial mechanisms to safeguard such information. We hear—most recently from former Vice President Dick Cheney—how perilous it will be to allow these men to spew propaganda at their trials, as if judges lack the legal power to silence an unruly defendant. We hear that our prisons cannot even contain these men, as though our prisons don’t already hold precisely such men. And we hear about unprincipled defense attorneys and legal loopholes from critics who would have you believe that no terrorist has ever been tried and convicted in America, because the entire criminal justice system is as fragile and tenuous as a newborn calf.

    Please. Such complaints would be far more persuasive if the very same people criticizing the prospect of New York terror trials for the 9/11 conspirators had not themselves rooted the original legal framework for the “war on terror” in the contention that there was actually too much law in America, not too little. In the wake of 9/11, Bush lawyers claimed to have been so choked and oppressed by a web of vague, complicated, and conflicting new laws criminalizing warfare that they could barely move. Indeed, former Bush lawyer John Yoo, now facing a lawsuit for his role in crafting the system of detainee abuse, has written that it’s this mass of laws and lawsuits that threaten to make America less safe. Yoo has warned that the current culture of “lawfare” will result in “a government that will avoid any and all risks, shun making any move that is not an exact repetition of locked-in procedure of 20th-century vintage, and keep plodding along the same path regardless of contemporary circumstances.”

  64. “Please. Such complaints would be far more persuasive if the very same people criticizing the prospect of New York terror trials for the 9/11 conspirators had not themselves rooted the original legal framework for the “war on terror” in the contention that there was actually too much law in America, not too little. In the wake of 9/11, Bush lawyers claimed to have been so choked and oppressed by a web of vague, complicated, and conflicting new laws criminalizing warfare that they could barely move.”

    This logic isn’t just bad – it’s dangerous. Equivocating the rule of law with the quantity of law is the kind of logic I’d expect to see accompany the rise of fascism.

  65. “The most important legal book I read this year was Karen Greenberg’s The Least Worst Place, about the first 100 days at Guantanamo. It’s a detailed look at an unmined sliver of history: the very first decisions taken about the camp detainees. As it turns out, career officers tried to implement humane policies, only to be thwarted by Bush administration officials. While we tend to think of the disaster that is Guantanamo as an inevitability, Greenberg provides a taxonomy of what went wrong and shows us that it could all have come out very differently.”

  66. Torture Roulette
    The Obama administration has picked the worst possible case for its first torture trial.
    By Dahlia Lithwick
    Posted Monday, Dec. 14, 2009, at 6:38 PM ET

    For close to a year now, the Obama administration has been playing judicial Whac-a-Mole over accountability for Bush administration torture policies. Each time an opportunity arises to assess the legality of Bush-era torture, the Obama administration shuts it down. When another case pops up, the administration slaps it down. This all started last February when the Justice Department invoked the alarming “states secrets” privilege in an effort to shut down an ACLU lawsuit against Boeing subsidiary Jeppesen DataPlan Inc. for its role in Bush’s “extraordinary rendition” program. (That case will be reheard at the 9th Circuit tomorrow).

    Since then, Attorney General Eric Holder’s Justice Department has worked tirelessly to shutter or pre-empt torture litigation in cases ranging from a civil suit against former Bush lawyer John Yoo filed by Jose Padilla, (in which the Obama administration has now taken the position that Justice Department lawyers’ advice on torture issues should have absolute immunity from lawsuits) to shifting its position on the release of torture photos.

    This morning, and with the blessing of the Obama administration, the Supreme Court declined to revisit an appeals court ruling dismissing a lawsuit filed by four British citizens released from Guantanamo in 2004. The men sued former Defense Secretary Donald Rumsfeld and 10 military officials for alleged acts of torture and religious abuse. The Obama Justice Department urged the court not to hear the appeal, claiming the lower court got it right when it determined, among other things, that Guantanamo detainees were not “persons” for purposes of American law and that “torture is a foreseeable consequence of the military’s detention of suspected enemy combatants.” Lawyers for the detainees asked the court to hear the appeal because, “[l]eft in place, the court of appeals’ decision will be a final assertion of judicial indifference in the face of calculated torture and humiliation of Muslims in their religion.”

  67. “The Obama administration says it deplores the use of torture, that torture is illegal. Period. But even as it refuses to let the courts address the torture perpetrated by the Bush administration in every other context, it’s about to launch a major criminal trial for the man who is a walking commercial for the proposition that the benefits of torture may sometimes outweigh the costs. The administration has now made it impossible to test the legality of torture in the case of Maher Arar—a man who was plainly innocent—or in the case of the four British Guantanamo detainees. We can’t look at torture as framed by John Yoo’s legal advice. So instead, as Hannity explained this morning, the headlines in the KSM case will be, “Khalid Sheikh Mohammed accuses the U.S. of waterboarding me 180 times.” And, as Cheney pointed out last week, many of not most Americans will respond by saying “Hey! Why not 181?” There won’t be any other headlines to compete.

    KSM is a monster. Nobody disputes that he was central to the planning and execution of the attacks on the Twin Towers and the Pentagon. If the trial of a man who was instrumental in killing thousands of innocent Americans becomes the sole forum in which the legality of prisoner abuse is to be litigated, public sentiment in favor of torture will only grow stronger. As David Feige argued recently in Slate, the KSM trial is poised to make a lot of bad new law as a result of the pressure to convict. But the most appalling result might well be a judicial determination followed by widespread public acceptance that torturing KSM wasn’t that bad. The Obama administration will have been instrumental in selling the public on future torture in a way that is even more distressing than its recent efforts to immunize the torturers themselves.

    Had Holder allowed the various other torture trials to go forward, some of the litigants would prevail and others would lose. We would end up with a fuller picture of the rendition program, CIA abuses, and the legal advice that allowed for water-boarding. We would have a set of courts piecing together a consensus on what the anti-torture statutes require and whether anyone has violated them. Instead, the KSM trial is about to become the only torture game in town. And it’s a game the Obama administration cannot win. “

  68. Bowing to opposition, Holder may abort civilian 9/11 trial

    Washington — The Associated Press Published on Friday, Feb. 12, 2010 10:18AM EST Last updated on Friday, Feb. 12, 2010 10:42AM EST

    Attorney General Eric Holder is leaving open the possibility of trying professed Sept. 11 mastermind Khalid Sheikh Mohammed before a military commission instead of the civilian trial originally planned for New York City.

    “At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules,” Mr. Holder told The Washington Post in an interview published in Friday’s editions. “If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding.”

    Opposition from New York officials has forced the Obama administration to reconsider plans to put Mohammed on trial in federal court in lower Manhattan, near where the World Trade Center was felled.

    City and state officials and many congressional Republicans argue that the high-security trial would put New Yorkers at risk of further attacks, cost taxpayers hundreds of millions of dollars in security expenses and take a staggering toll on nearby businesses.

  69. KSM Doesn’t Deserve to Be a War Criminal
    Treating terrorists like warriors is exactly what they want.

    As the U.S. Congress threatens to block funds for Khalid Sheikh Mohammed’s (KSM’s) civilian trial, critics of President Barack Obama’s approach to prosecuting terrorism have a common refrain: KSM is a combatant, not a criminal. As Sen. John Barrasso recently put it, “These people are at war against the United States and our values. They deserve a military judge and jury.”

    But does KSM really “deserve” the honor of a military trial? That is a privilege normally reserved for defendants entitled to call themselves warriors.

    It’s no surprise that al Qaeda members would want to be seen as soldiers at war with the United States. Terrorist groups always want to be seen as warriors. Just think of the names they give themselves: the Lord’s Resistance Army, Lashkar-e-Taiba (“Army of the Righteous”), or the Irish Republican Army, to name a few. The warrior mystique helps them to recruit glory-seeking young men to join their cause. It helps them justify the killing of their enemies and portray all of their victims as casualties of combat. It enables men like Osama bin Laden to portray themselves not as outlaws hiding in caves but leaders of great armies, confronting the world’s superpower on a global battlefield.

    When KSM was first brought before a military panel in Guantanamo, he reveled in the trappings of military justice. After confessing to the September 11 attacks, he said: “I did it, but this [is] the language of any war.” In war, he said, “there will be victims.” He then compared himself to George Washington, and said that if Washington had been captured by the British, he too would have been called an “enemy combatant.”

    It makes sense that a man who plotted the murder of innocent people from a refuge thousands of miles away would want to be seen as a soldier in a war. But why would politicians who claim to be tough on terrorism want to give him that status, as many Republicans do today? Why on earth do they think that facing justice in a civilian court, where the United States prosecutes murderers, rapists, drug dealers, pimps, and yes, terrorists (over 300 during George W. Bush’s presidency), would be some sort of privilege?

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