Trying KSM

The always-wonderful Dahlia Lithwick fumes that the President's decision to try Khalid Sheikh Mohammed before a military tribunal is Cowardly, Stupid, and Tragically Wrong. She complains that "[i]n reversing one of its last principled positions—that American courts are sufficiently nimble, fair, and transparent to try Mohammed and his confederates—the administration surrendered to the bullying, fear-mongering, and demagoguery of those seeking to create two separate kinds of American law." Read the whole thing.

Lithwick and I agree on one thing: KSM probably shouldn't be tried before a military commission. We part ways on this: I am dubious that he should be tried at all. The crux of our disagreement comes early and is repeated often. Lithwick believes that the decision "put[s] the Obama administration's stamp on the proposition that some criminals are 'too dangerous to have fair trials,'" and frets that "[i]t may not matter to you today that the U.S. government has invented a new class of criminals fit for a new class of trials." But her analysis stands or falls on the proposition—which I dispute—that these men are "criminals" whom we must deal with as "lawbreakers." That is, in my view, the wrong paradigm. We are at war, and these men are members of the enemy's military force. In such circumstances, we take prisoners and detain them for the duration of hostilities. We did not seek to arrest Admiral Yamamoto and Captain Fuchida after Pearl Harbor; we were at war and we sought to end the war. When possible we took prisoners; when necessary we killed the enemy. (Yamamoto was shot down and killed in 1943, while Fuchida survived the war—including a close call at Hiroshima—ultimately becoming an evangelical and an American citizen.)

Nor do I understand the concept of processing them through the criminal law system, to be candid. Even assuming that we have laws criminalizing what these people did, under what theory of criminal jurisdiction could we try them, given that most of what we are talking about are actions undertaken outside the United States by persons who are not U.S. citizens? Suppose you have a German woman—a citizen and resident of Germany. She lives in Berlin. She procures for a friend (also a German, also living in Berlin) the basic components of some kind of chemical weapon, undeniably "assist[ing]" him in his procurement, receipt and posession of a chemical weapon. She then flies to New York. On landing, under the theory of federal jurisdiction that must underlie Lithwick's position, can the feds arrest and charge her under 18 U.S.C. § 229(a)(2)?

I think it's a mistake to conceive of the war on terror as a law enforcement exercise, to think of foreign terrorists as criminals, and thus to reason that war criminals such as KSM should be tried within the criminal justice system in the first place. Frankly, I really though the Bush administration got this whole thing backwards. They were desperate to keep detainees out of federal habeas proceedings, and instead decided to start trying them. That's completely backwards, to my mind. These are prisoners of war, but they're prisoners of war in a sui generis conflict, one which may last an exceedingly long time. They shouldn't be "charged" or "tried"; they should be detained as prisoners of war for the duration of hostilities, but fully entitled to challenge their detention via habeas as an extension of Hamdi.