The right way to try KSM

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By Benjamin Wittes
Thursday, October 28, 2010; 5:46 PM

Here's a simple proposal to break the impasse over how to proceed against Khalid Sheik Mohammed and his colleagues: Press charges in both military commissions and in federal court. Call it the John Allen Muhammad model.

The 2002 D.C. area sniper case is strangely instructive in planning the trials of the Sept. 11 plotters. Recall that when Muhammad and accomplice Lee Boyd Malvo were captured, several of the jurisdictions in which they had killed people filed charges. Virginia authorities were allowed to proceed first and given custody, but the other jurisdictions held their cases in reserve. Maryland prosecutors pursued their case even after Muhammad and Malvo were convicted in Virginia. If by some fluke the Virginia trials had ended in acquittals, other states would have proceeded.

Fast-forward to KSM and his fellow plotters. These men are undoubtedly war criminals who can be tried by military commission. They are also undoubtedly criminals under a gazillion different sections of the U.S. Code. Proponents of military commissions believe deeply that commissions are the most viable trial forum and symbolically important for stressing that America is at war. One reason they so viscerally oppose trying the Sept. 11 conspirators in federal court is that it mutes that symbolism and makes terrorism a law enforcement matter.

Proponents of federal court trials believe with equal sincerity that federal courts offer the most pragmatic answer and the best way to honor the rule of law. For them, the failure to use federal courts bespeaks a lack of faith in American justice, an effort to circumvent our values.

Both sides have valid points at the symbolic level, and a trial in any forum could play out badly. Neither camp, however, is willing to give up on the idea of a trial and just keep the plotters in military detention - the option that arguably makes the most practical sense. So if having no trial is politically impossible, and we are paralyzed by not being able to choose, why not use both?

True, the Constitution doesn't let the government try someone twice for the same crime. But it does not forbid serial prosecution for different crimes. And the Sept. 11 conspirators committed a lot of different crimes. It should be possible to divvy them up, putting the ones that seem most like war crimes in front of a commission and the ones that seem most like regular criminal offenses before a federal court.

What if, for example, prosecutors charged the attack on the Pentagon and the deaths there in a military commission, but the hijacking of civilian aircraft and the deaths at the World Trade Center in federal court? Alternatively, they could charge KSM with a single discrete offense in federal court and put the broader Sept. 11 conspiracy case before a military commission - or vice versa. While prosecutors would have to be careful in sequencing the charges and presenting evidence to prevent an acquittal in any first case from spoiling the second, the magnitude and diversity of the Sept. 11 offenses should enable creative prosecutors to navigate the issue.

The first and most important advantage to this approach is that it would alleviate the zero-sum quality of the current debate. So if prosecutors, say, decided to proceed first in federal court, believers in commissions would not have to give up on their preferred venue; and if they conversely decided to move first in the commissions, believers in federal court trials would have lost only a dispute over sequencing. A second trial might never happen, just as a bunch of jurisdictions never brought the D.C. snipers to trial. But even if those trials don't happen, the government will have preserved its symbolic equity in the values that second tribunal represents.

It would not be saying that "this is war" or that "this is law enforcement"; it would be saying both. That has the happy side benefit of accurately reflecting the Obama administration's view of the subject.

A second set of charges would also provide a valuable fail-safe against the possibility of total system failure. This is a bigger possibility in this kind of trial than it was in the sniper case. Military commissions remain something less than ready for prime time, and federal court trials can go bad, too. The volume of coerced evidence in the Sept. 11 conspiracy case will make trial in any forum challenging. Having a second set of charges pending in a second venue even as the first set goes to trial would reduce the ugly pressure to guarantee a conviction.

It would also give Attorney General Eric H. Holder Jr. a ready answer to a question with which he has publicly struggled: What will we do in the event of an acquittal? We will, he could simply say, move forward with the next case.

The writer is a senior fellow in governance studies at the Brookings Institution and a member of the Hoover Institution Task Force on National Security and Law. A longer article making this argument is on his blog at Lawfareblog.com.


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