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Trying KSM: Why? part 4

We have criticized the Obama administration’s decision to try Khalid Sheikh Mohammed and his fellow 9/11 conspirators in federal court in several posts. Attorney General Holder’s press conference announcing the decision is available here in its entirety.
In “A reasonable decision,” Jim Comey and Jack Goldsmith step forward to defend the Obama administration’s decision. Among other qualifications, Comey and Goldsmith are former high-ranking officers of the Justice Department during the Bush administration, and their opinion warrants consideration.
The Comey/Goldsmith column is nevertheless relatively brief and conclusory. It omits consideration of the decision on the terms that Attorney General Holder himself adduced in its favor. It also omits any mention of the “protocol” on which it was based. One can only wonder why.
The Comey/Goldsmith column has elicited a lengthy response by Andrew McCarthy. By contrast with Comey and Goldsmith, McCarthy characterizes the Obama administration’s treatment of KSM et al. as “An unreasonable decision.” Despite the professional distinction that Comey and Goldsmith bring to the table, McCarthy’s response is devastating. I urge you to read it all.
McCarthy was of course the prosecutor in the case of the Blind Sheikh and others in connection with the bombing of the World Trade Center in 1993. His memoir recounting his experience together with lessons learned is the invaluable Willful Blindness. When it comes to the subject of federal trials for unlawful combatants, McCarthy is like Walt Whitman: He is the man, he suffer’d, he was there.
In “No need to fear a Manhattan terrorist trial,” Stuart Taylor has also stepped forward to defend the administration’s decision. McCarthy has not separately addressed Taylor’s column, but many of the points that McCarthy makes in response to Comey and Goldsmith’s column also apply to Taylor’s. I would add that while Taylor defends “Holder’s logic,” Taylor also omits any mention of the “protocol” that Holder himself has repeatedly cited supporting his decision.
The document setting forth the “protocol” is titled “Determination of Guantanamo Cases Referred for Prosecution.” The first paragraph describes a process for determining which cases are to be referred for criminal prosecution. The second paragraph sets forth the “Factors for Determination of Prosecution.” It reads:

There is a presumption that, where feasible. referred cases will be prosecuted in an Article III [federal] court, in keeping with traditional principles of federal prosecution. Nonetheless, where other compelling factors make it more appropriate to prosecute a case in a reformed military commission, it may be prosecuted there. That inquiry-turns on the following three broad sets of factors, which are based on forum-selection factors traditionally used by federal prosecutors:
A. Strength of Interest. The factors to be considered here are the nature of the offenses to be charged or any pending charges; the nature and gravity of the conduct underlying the offenses; the identity of victims of the offense; the location in which the offenses occurred; the location and context in which the individual was apprehended; and the manner in which the case was investigated and evidence gathered, including the investigating entities.
B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns.
C. Other Prosecution Considerations. The factors to be considered here are the extent to which the forum, and the offenses that could be charged in that forum, permit a full presentation of the wrongful conduct allegedly committed by the accused, and the available sentence upon conviction of those offenses.

Despite the bare bones nature of the enumerated factors and the lack of detail regarding how they are to applied, this is a shocking document. The operative presumption is a rule in favor of criminal prosecution. Nothing could more clearly indicate the Obama administration’s treatment of the war on terrorism as a venture in law enforcement. (McCarthy commented on the “protocol” here.)
Given application of the “protocol” to KSM et al. to support a trial in federal court, we can deduce how the enumerated factors are applied by the Obama administration. If the attack occurred in the United States, it weighs in favor of criminal prosecution. If the attack focused on American civilians, it weighs in favor of criminal prosecution. It is less clear to me how the other factors are weighed and applied in practice.
The Obama administration is engaged in a venture that will simultaneously undermine the prosecution of the war in which we are engaged while it blurs the distinction between war and crime. To what end?
Whatever it is, notice of the express rationale supporting the administration’s decision should be taken, especially by prominent defenders of it such as Jim Comey, Jack Goldsmith and Stuart Taylor.

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