Friday, November 20, 2009

KSM (non)Politics

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.


Unknown said...


Professor I gotta admit it gets a mite boring around here at times, seeing as how all you ever do is write down sensible opinions backed up by accurate, relevant facts. Have you considered the occasional gin-fueled rant against about the threat posed to our democracy by the hordes of leprosy-ridden American Samoans invading our shores these days? Might spice things up a bit.

Sam Rickless said...

The decision to try KSM in a civilian court is a pointed slap in the face of the Bush administration and a message to the right. (1) The decision makes clear that we can provide a fair trial (with all the protections offered defendants in U.S. criminal courts, protections not offered under the system of military commissions) to even the highest ranking Al Qaeda figure in captivity. (2) It is likely that KSM will be convicted on the evidence (not including any evidence derived from the waterboarding), thereby pacifying critics from the right. (3) The trial will show that critics from the right who have screamed about how dangerous it is to have terrorists on American soil are nuts. The sky will not fall down during or after the trial. (4) The likely conviction of KSM will make it more politically palatable to try other Gitmo detainees in civilian courts. [Think of how risky it would be, politically, to try some detainee on the basis of hearsay reports obtained from Afghan warlords in the field....] If a detainee were acquitted right off the bat, just imagine the outcry from the right.

I think I have just argued myself into the realization that the Obama administration is more worried (in the Gitmo PR department) about the right than it is worried about the left. But this makes political sense. What to do with the Gitmo prisoners is a political hot potato, and the Obama folks have thought quite carefully, I think, about how best to handle it. So I guess that on balance my praise is less faint than yours is.

Patrick S. O'Donnell said...

[This comment is in two parts, owing to the limit imposed on characters.]

I’ll offer one reason that appears not to have been publicly discussed for rejecting the “war model” in favor of the “law/crime” model in this case and others. Although I often defer to (or am persuaded by) Larry May’s reasoning on such matters, I think his admittedly tepid conclusion generally favoring a war model in the trying of terrorist suspects is wrong: “I’m inclined to think that the war model makes more sense” (in War Crimes and Just War, 2007: 310). Here’s why: at least insofar as we’re dealing with al-Qa‘ida militants (thus the 'war model' makes more legal sense in the case of Islamist state actors or those enagaged in more conventional military conflicts), preference for the war model has perverse even if unintended effects, owing to the militants’ collective self-description or self-understanding as jihadists within the Islamic tradition.

The Islamic legal tradition (of Shari’ah and fiqh), which admittedly is no longer as intellectually vigorous and relevant in the manner it once was in the Islamic world, understands (the ‘lesser’) jihad (the ‘greater’ jihad of course being the personal struggle against evil and for the good, entailing such things as self-purification and self-discipline) as something very much like (if not identical to) in significant respects, the Just War tradition that begins with Augustine, is philosophically fortified by Grotius, and in our own time is formulated in secular moral terms. Taking this tradition to encompass both jus ad bellum and jus in bello rules of war, John Kelsay thus has ample reason to title his latest book on this topic, Arguing the Just War in Islam (2007). Even a cursory examination of this tradition will reveal the unequivocal failure of al-Qa’ida militants who resort to terrorist tactics on behalf of their short-term goals and long-term aims to conform with the minimal ethical and legal requirements of jihad within the legal schools. In other words, based on an ethical and legal assessment using the normative criteria common to this tradition, these militants are not entitled to characterize their actions within the rubric of jihad:

“The most important weakness in the militant claim to represent true Islam is the contradiction between the end professed and the means employed. Those who seek rule by the Shari’a should themselves be ruled by its norms. If they fail in this regard, their claim to represent the cause of justice and right is placed in doubt. Militants, it appears, are their own worst enemy.” (Kelsay: 198)

In short, by employing the war model, at least in the case of these militants, we are reinforcing the not uncommon perception in parts of the Muslim world that they are indeed sincere Muslims fighting a jihad according to a rationale and strictures culled from the Islamic tradition. And this, in turn, serves to undercut the arguments of such well-known Muslim democrats as Abdulaziz Sachedina, Abdullahi an-Na‘im, Khaled Abou El Fadl, and others like them (e.g., those affiliated with the Center for the Study of Islam and Democracy in this country), as well as the many Muslims around the world susceptible to their arguments (the vast majority who, when given the opportunity, prefer ballots to bombs) that al-Qa‘ida and similar militants have no warrant whatsoever for resorting to violence, let alone terrorism.

Patrick S. O'Donnell said...

[Part 2]

In any case, how we treat self-described jihadists or Islamist militants accused of terrorism will have consequences that will reverberate throughout the Islamic world, consequences that that we would be wise to seriously consider:

“Will Muslims believe that democracy is legitimate if they perceive injustice in the behavior of democratic states? An-Na’im’s criticisms constitute a warning: if the United States and its allies are not careful, the conduct of the war on terror will present militants with a golden opportunity. The greatest weakness of militants involves a gap [I would say an egregious contradiction] between their stated goals and the means they employ. Defenders of democracy must not give cause for Muslims to identify them with an analogous gap. The question ‘Who will believe that your cause is just, when your behaviours are so unjust?’ may provide a rhetorical tool for militants as well as for democrats.” (Kelsay: 204)

The global community of Muslims is looking on with considerable interest, to put it feebly, and we should thus keep in mind the fact that

“Muslim democrats help to show the way for this community, by showing that the practice of Shar‘ia reasoning can legitimate democracy. In addition, they write and speak in ways that invite scrutiny from non-Muslims. [….] When Muslims argue about the just war, they use sources that are unfamiliar to most Americans or Europeans. [….] [Muslim democrats] speak about right authority, just cause and right intention.... [T]he prohibition of direct attacks on civilians and concerns about excessive force are recognizably present in Muslim discourse. Muslims understand the concerns of the just war tradition, and they speak about these in terms that resonate with a billion believers around the world. Beyond this, Muslim democrats speak in ways that resonate with non-Muslims. [….] In the end, the fate of Muslim democracy may well be connected with the conduct of the war on terror. George Bush was right on that June evening in 2005: the conflict between advocates of democracy and Islamic militants is a defining moment for humanity. [….] Even as the war on terror will have an impact on the cause of Muslim democrats, so the fate of Muslim democrats is going to have an impact on the political future in the United States, the European Union, around the world.” (Kelsay: 223)

Perhaps this does not suffice as a compelling reason to prefer a law/crime model, but in conjunction with already proffered and possible reasons, it would appear to strengthen the grounds for trying these militants in a civilian court. It certainly helps buttress the argument of Muslim democrats, among others, that al-Qa‘ida militants cannot assume the mantle of Islamic jihad by way of sanctioning terrorist acts. In so doing, we will also, if only indirectly, support the urgent and larger moral and political cause of Muslim democrats around the world. Resorting to the war model, on the other hand, serves as an unintended but no less effective reinforcement of the self-description and self-understanding of al- Qa‘ida militants that they are engaged in a jihad. Terrorist acts of this sort cannot at all be construed as arguably falling within the Just War tradition, especially jus in bello rules of war, nor do Muslim democrats view this as a jihad in the traditional sense (i.e., according to the moral and legal criteria of Islamic law). This is a situation or opportunity we might take advantage of (exploiting what the classical Chinese philosophical texts refer to as 'shi:' 'the inherent power or dynamic of a situation or moment in time') to strengthen and spread such convictions rather than undermine them.

DavidMac said...

If the AG (Eric Holder) couldn't cite a precedence for his (o.k., Obama's) decision regarding KSM, then the decision couldn't have been well thought out.

BTW, a first-year law school student could get the case dismissed in civilian criminal court.

Anonymous said...




Unknown said...

On the other hand,Harley boots ed hardy clothes often is the usual lift-up model with a face Christian audigier shield.One luxury full-faced Harley helmet to look for ed hardy shoes can be the GP Tech Metal Warrior. This Kevlar ed hardy outlet made helmet comes standard considering the ultimate Integrated Ventilation to ed hardy Bikini provide you with oxygen in your ride. And, techniques about fogging ed hardy hats in the shield together with the outdoors, the ed hardy swimsuits helmet will be fog proof. The optimim finish on the helmet guarantees ed hardy clothing no scratches, either. However, ed hardy glasses this amazing ed hardy Jackets tool industry around and may just break your bank! If ed hardyprice is an object, devote all across $70.00 and share with the ed hardy iphone cases conventional stock half helmet. That should as ed hardy dresses a minimum produce a number protection an individual's Harley davidson lower.