Six Options

I’m as committed as ever to the idea of due process.  I have plenty of intellectual companionship in saying that a trial is the right thing to do because indefinite detention is not a good option, and that we should have no fear of doing the right thing, as long as we do it the right way, but I’m also completely at a loss for what to do or thing when our government claims to be trying to do the right thing, but at the same time admits that it’s all just for show. Having a show trial is worse than having no trial at all.  More thoughts from around the blogosphere more or less echoing this sentiment here, here, and here.

So now that I’ve argued passionately in favor of the rule of law even in a tough case like this one, I need to react to the fact that what I had been led to believe was a very legal, moral, and correct thing to do is revealed to be nothing but a sham.

One thing I’d point out — in this exchange, Senator Grassley gets something wrong.  He says that our criminal law is “our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.”  I agree that our criminal law ought to be that clear.  But it’s not — a generation’s worth of futzing around with the concept of “exigent circumstances” has transformed Miranda into a Swiss Cheese of a legal rule.  Now, if we tortured KSM, then yes, any evidence obtained thereafter is “fruit of the poisoned tree” and is properly excluded from the trial.  And while I labored mightily to not believe it was true, available evidence says that I was wrong before — we did torture this particular prisoner.  But with the many “exigent circumstances” rules to Miranda, I have difficulty seeing a court excluding evidence of the confession he (purportedly) gave before the torturing started.  At this point, though, I’m not certain Miranda matters at all because the Constitution is evidently of little importance to the people in charge of solving the problem of what to do with these prisoners.

What I can do is say that it appears to me that as a nation, we have six viable options for how to proceed with this situation.  Here they are, in my order of preference.

So right now, it seems to me that the right thing to do is to have a military tribunal conduct the trial.  I absolutely agree that the trial must be venued in either New York City or Washington, D.C., because that’s where the attacks took place.  (Having it in Pittsburgh, in recognition of the United Airlines Flight 11 flight in which passengers overpowered the hijackers, is silly because it appears that the target of that strike was going to be either the Capitol or the White House.)  And the trial should not be public, if we’re going to be discussing classified evidence.  But the trial should be meaningful — it should be before an unbiased panel (which I frankly think is more likely with a military court than a civilian one) and it should have a consequence one way or the other.  If there is an acquittal, then those charges are dismissed and the defendant goes free — so long as he is not awaiting trial on some other crime.  Given that Eric Holder repeatedly and forcefully stepped on his own dick during yesterday’s Senate hearings, this will now require that the Administration say publicly, loudly, and repeatedly that the Attorney General is being overruled by the President himself — that if the trial results in acquittal, the result will be actual liberty for Khalid Sheikh Mohammed.  Such a statement will carry a heavy political price for the President to pay, but that’s the consequence he must face for the singular error made by his hand-picked subordinate.  As a second-best alternative within this broad choice, hold the trial in a civilian court, but it appears that a military tribunal is a superior forum for this particular case, with the evidence at issue.  But either way, hold a real trial.

The next-best thing to do is to say that we have reviewed the available legal authority and find that the al-Qaeda prisoners in our custody right now are prisoners of war.  The necessary ingredient of being a prisoner of war is that the captive must have been engaged in the service of a foreign state and wearing a uniform of some kind; I do not think it an extraordinary or facile gloss on the situation to say that al-Qaeda was trying to create a new nation-state (to wit, the proposed Caliphate of Osama bin Laden) and that this nascent political entity had simply not issued uniforms to its warriors yet.  We could call the al-Qaeda detainees “prisoners of war” if we wanted to.  That would mean that ultimately, they will be charged with no crimes at all, and when al-Qaeda is no longer engaged in hostilities against the United States, they’ll be let go.  That commits us to not torture these prisoners, which we shouldn’t be doing anyway, and it gives them other rights while they’re in custody under the Geneva Conventions.  And it bargains away our claim that these guys are nothing more fearsome than common criminals.  But it does make absolutely certain that there will be no trial and we will keep custody of them until the threat is gone.

The third-best thing to do would be to hold a Nuremburg-style trial for commission of “crimes against humanity.”  For that, we’d need to enlist jurists and lawyers from other nations and have a public proceeding.  One of the useful precedents set by Nuremburg is that at those trials, the defense of tu quoque was not permitted — so evidence of wrongdoing by the United States (i.e., torture of prisoners, use of military weapons causing civilian collateral damage) would be irrelevant and excluded.  The downside is that at Nuremburg, the lawyers and judges were making it up as they went along and the whole proceedings left the taste of a show trial to implement victor’s justice.  But personally, I don’t think they were actually show trials — many of the Nuremburg defendants were acquitted and set free.

After that, we’re out of options for dealing with these prisoners within the confines of the law.  So the fourth-best thing we could do, at this point, would be to just kill our prisoners.  Frankly, by the time we run out of good legal options, simple murder becomes the best political expedient.  I hope that no one is comfortable with that statement, by the way — despite the fact that we are talking about people we’re quite certain have a lot of blood on their hands and at least at one time were quite anxious to get more.  The reason for your discomfort with that statement is that it’s quite evident that even if we did capture these bad guys “on the battlefield” and they aren’t entitled to any Constitutional rights at all, they’re our prisoners now and we have power over them.  My point about just killing them is that if we’re going to dispense with actually complying with the law, and say that the only rule that applies to these guys is Rule .303, then we should do it right.  And then we must accept the moral and possibly legal consequences of doing so.  But this does have the two conveniences of intellectual consistency and and expedient result.  Again, I hope no one is comfortable with this.

Moving further down the list, the fifth option is to do nothing — that is, to do what we have been doing, holding these guys indefinitely without charges, without presenting evidence, and in a legal limbo that we refuse to resolve.  That has many, many disadvantages in that it leaves open and unresolved this festering problem.  I found the status quo unacceptable under Bush, why should it be any more acceptable under Obama?

But the worst thing we can do is pretend to comply with the law when we’re actually not doing it.  A show trial actually goes further than the status quo towards making a mockery of our legal system and offering evidence to the world that we are willing to disregard the rule of law when it is inconvenient for us to comply with it.  This is worse than legal limbo because it turns our courts into vehicles of fraud.  Not using our courts at all is bad enough — but tainting them with the corruption of a show trial is worse because it deprives the courts of legitimacy as surely as the Executive branch has abdicated its own legitimacy already, twice now under two different Presidents of both major parties.

And this last choice is the option that the Administration has apparently chosen to pursue.

If nothing else, America ought to stand for the rule of law.  Insisting upon the rule of law is why we had our Revolution in the 1770’s.  Insisting upon the rule of law has made this nation rich, powerful, and righteous.  We disregard the rule of law at our peril.  That would be the start of a historic cancer that will eat away at us from within as surely as the decision of the Roman citizenry to eschew and outsource military service led to the rot and sudden collapse of their empire, because like the Roman martial ethic, the American legal ethic is the taproot of our greatness. I fear that the highly-polarized political atmosphere of this country is an environment ripe for that cancer to metastasize.

I have not yet perceived an existential threat to the nation in the misguided policies of the Obama Administration.  I have perceived serious long-term problems with our economic health, advocacy of policies doomed to be expensively ineffectual, and evidence of managerial incompetence.  These are not good things, but they are the sorts of problems that our government can adapt to and against which the Constitutional system of government was built to withhstand.  But this is the first time I’ve seen this Administration take a truly dangerous stance, to point a dagger directly at the still-beating heart of what makes the United States of America a nation of which I can be proud to be a citizen.  It broke my heart when the last Administration did the same thing and it breaks my heart now that I see it happening again.

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. Another option: have intelligence experts assess whether or not they are actually a threat to the United States. If they are not, deport them. If it is determined that they are in fact a threat, then maybe you have enough evidence to prove it, hence a solid case that you could send to trial.

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