What “a Mess”–The KSM Trial

After announcing in November, 2009 that Khalid Sheikh Mohammed (“KSM”) would be tried in federal court in New York, Attorney General Eric Holder announced last week that KSM would now be tried in a Military Commission at Guantanamo. This stark reversal, which also follows a failure to close the Guantanamo detention facility in the first place, continues to make true the description President Obama gave to the detention policies he inherited: “We’re cleaning up something that is, quite simply, a mess—a misguided experiment . . .” In some respects, the cleanup is as big a mess as the original because the continued detention of persons at Guantanamo combined with the inability to conduct trials in the U.S. means that the administration is continuing practices it does not think are in the best interests of the U.S. At this point they have no choice. Holder reiterated his belief that “the best venue for prosecution was in federal court.” That being no longer possible, the experiment therefore continues.

Holder also stated that Congress had “taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.” One aspect of this on-going mess is how checks and balances have worked in surprising ways.

An executive branch chastened by the Supreme Court into seeking congressional approval for Military Commissions not only obtained stronger constitutional support for newly constituted Commissions, but has now been forced by Congress into utilizing them, if—and this is a big if—the executive branch wishes to enforce laws violated by the detained individuals (as opposed to detaining them indefinitely). The President’s power has been limited, but not in a way that channels it into ordinary governing form. Rather than rely on Article III courts as the default, the President must now utilize Military Commissions in ways that interfere with prosecutorial discretion. The irony here is that the end result—military trials—is an outcome favored by Dick Cheney and other presidential unilateralists achieved by a means—tying the AG’s hands—restrictive of presidential power that they ordinarily contest. Such a result may make little practical difference regarding the substance of policy to future Cheney-inspired executive officials. But for the present Attorney General this is an extraordinary situation. He must proceed with a legal course of action that he thinks is decidedly inferior (untested venue, unresolved evidentiary issues, undesirable signals internationally, etc.) where a better course should be available (tested, resolved, and legitimate Article III courts).

Beyond overarching rule of law criticisms of Military Commissions, what is unfortunate about this result is that the executive branch has lurched from one kind of disavowal of responsibility for the legal culture it creates to another. In the first disavowal, the executive seemed to say that because of the nature of terrorist threats and crimes there was no other suitable venue for detention and trial (despite the use of alternatives for both). Circumstances compelled an executive policy despite the wider legal ramifications that might encourage more reason and reflection in choosing and designing a military commission. The mess exists in part because of ad hoc policy rather than comprehensive planning. In the new disavowal, the executive claims institutional limitations have now compelled its prosecutorial “choice.” In neither case do we have the combination of robust reasons for “choosing” and designing an institutional framework and articulation of how this fits within broader constitutional vision. In both cases, presidential responsibility for the current mess is deflected by necessity or institutional barriers. In the meantime, the multi-track detention and trial system continues to be more ad hoc than rationally designed. It is “a mess.”

Another institutional surprise arises from the Supreme Court’s continuing silence in the wake of its decision inBoumediene. Having asserted jurisdiction over Guantanamo, required minimal due process for detainees, encouraged congressional involvement, and assured access to federal courts, the Supreme Court has offered no further guidance, recently rejecting three more petitions. Perhaps the Court views the institutional balance between Congressional authorization, executive practice, and D.C. Circuit review as sufficient. But silence does leave unanswered important questions about evidentiary standards, the role of international law, and release orders, unanswered at least by the Supreme Court. Linda Greenhouse suggests that the new silence may be caused by “Gitmo Fatigue.” There is undeniably some of that to go around, even for the White House and the Attorney General. But in the meantime, we are stuck with the “mess,” fatigued or not, and the one institution that served as a check against the executive, and a catalyst for the present encroachment by Congress, has stayed its hand from further involvement. This does come as something of another institutional surprise.

A final institutional upshot was suggested, if I understood it correctly, by a NY Times Op-Ed that compared Nuremberg to the potential KSM trial. This upshot could be characterized by the public meaning for “We the People” a trial might foster. A trial could produce a public narrative that can be “essential in creating memory and senses of responsibility,” as the Op-Ed suggests.  Such a consequence could be important to creating meaning through legal process for the national community, the kind of celebration of our governing institutions to which Holder avers.  Contrary to such optimism, it seems more likely that the moment of narrative creation has passed us by. Beyond the fact that Nuremberg was also a military trial, the comparison breaks down immediately. The “narrative” a KSM trial will provide will teach us little about the nature and methods of criminality conducted by the defendant. It will not help sustain the memory of the victims or the memory of the institutional failures that led to crimes of staggering dimensions, as Nuremberg did. Nor will it create broader “senses of responsibility” in a community that aided in the perpetration of mass atrocity, as Nuremberg might have done. Instead, if it teaches anything, it may teach us more about the fragility of how governing form relates to function. We have struggled with institutional design, appropriate policy, and actual practice, along the way moving from unilateral executive claims to congressional encroachment and Supreme Court silence. Without comprehensive planning, I don’t see how the public narrative can remain anything more than “a mess” of ad hoc policy design and institutional interventions.  Thus, President Obama’s description seems fated to remain true.

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