By Mike Dorf
I don't have much to add to the substantive discussion--sensible and otherwise--of the Justice Department's decision to try Khalid Sheikh Mohammed in a civilian court. I do want to register what will undoubtedly be seen as faint praise for what I imagine must have been the integrity of that decision. Here goes:
1) The Obama Administration's conservative critics think that any backing off from a policy of military detention and military tribunals is weakness if not treason. Nuff said here.
2) Meanwhile, critics from the liberal side (a group that often but not always includes yours truly) will not be nearly as pleased as one might expect from this decision. KSM is probably the highest-ranking Al Q'aeda operative to have been apprehended since 9/11 (or ever). He was waterboarded 183 times. Thus, if there is any 9/11 suspect as to whom there are serious security and evidentiary issues in civilian court, it would seem to be KSM. And yet the govt plans to give KSM a civilian trial but NOT to provide civilian trials to all Gitmo and Gitmo-equivalent detainees. For liberal critics, this raises the question of who is more difficult to try in a civilian court than KSM. They suspect that the answer is no one, making the decision to use even new and improved military tribunals for anyone else problematic.
Compounding matters, the near-certainty that KSM will be sentenced to death will undermine any PR benefit that might have accrued among domestic death penalty opponents and Europeans who were most troubled by the military detention and trial regime. Add to that the delay in closing Gitmo and it seems that, as far as criticism from the left is concerned, the KSM civilian trial is at best a bad PR case that the Administration can only hope to manage.
Thus, no one is likely to be pleased by the current suite of detainee decisions by the Administration. Which brings me to my main point: The politics of this latest confluence of decisions and announcements is so bad for the Administration that one can only assume they were not made on the basis of politics but were instead the result of a judgment about what would be best on the merits. Faint praise perhaps, but praise nonetheless.