Bumper-stickering: That’s the wonderful verb Jack Goldsmith and Jim Comey, two former Bush administration lawyers, use to describe how movement conservatives reacted to the decision to try Khalid Sheik Mohammed in Federal district court. Eric Posner made similar points earlier on the Volokh Conspiracy. In brief: the government has to do something with its jihadist detainees. Each option — trial in Federal court, trial before a military commission, indefinite detention — has its advantages and disadvantages. Where the government’s evidence against the accused is sufficiently strong, however, it makes sense to seek conviction in a tribunal whose legitimacy is not in doubt, whose procedures are well-established and whose reliability is rarely questioned — namely, an Article III Federal court. In prosecuting KSM in district court, Eric Holder made a reasonable (and possibly the best) decision under the circumstances.
The Obama administration’s decision to give Khalid Sheikh Mohammed and other 9/11 plotters a civilian trial in New York is both alarming and depressing. We sometimes speak of “the 9/10 mentality”: and this is a perfect expression of that mentality. George W. Bush said he wished to banish the days of treating Islamofascist terrorism as a law-enforcement problem; John Kerry campaigned in 2004 signaling a desire to return to those days; he was defeated; but the next Democratic nominee was elected — and here we go.
Nordlinger’s slogan, “Terrorism is Not a Law Enforcement Problem” is correct in one obvious sense: terrorism can’t be adequately prevented solely by bringing prosecutions in Article III Federal courts. Notice, however, how Nordlinger takes this truism, which should remind us that the government should use all means available to stop terrorism, and turns it around to argue that some means should in fact not be used. In the name, I suppose, of shoring up the “war on terror” metaphor, the conservative movement actually wants to deny the government one proven way to put away jihadists.
Goldsmith and Comey don’t come out and say it, but the Bush administration’s botching of detention policy is part of what makes the case for prosecuting KSM in Federal district court so compelling. The Bush administration only very belatedly sought Congressional approval for its detention policies, and then only in response to a string
of humiliating defeats
in Federal court. Its stubborn attachment to the “He-man” theory
of executive power — which holds that the Executive branch can pretty much do anything in the War of Terror whether the other branches like it or not — succeeded only in making it more difficult to settle the status of jihadist detainees. As Goldsmith and Comey note, the military commissions system created under Bush has produced only three convictions in eight years. It will take several more years for the Obama administration, Congress and the courts to sort out the mess that the Bush administration left behind.
Meanwhile, of course, according to the Justice Department’s May 30, 2005 “torture” memo
, the Bush administration water-boarded KSM 183 times. Like it or not, the abuse of KSM undermines the credibility of any military commission. We should count ourselves fortunate has to have a Federal judiciary with enough good reputation to cleanse any conviction of KSM of the taint of illegitimacy.
Ironically, Nordlinger is a persistent critic
of bumper sticker politics. “Blue-state” conservatives have to put up with a lot of hostile and thoughtless sloganeering. That’s what makes Goldsmith and Comey’s neologism so pointed: they are accusing movement conservatives of doing exactly they claim to despise. Contrary to bumper-stickerers everywhere, not every decision by the other side is an obvious outrage.