Advancing a Free Society

The Goldsmith-Wittes-Posner Option Goes Live

Saturday, November 13, 2010

The Washington Post is reporting this morning that the administration’s solution to the problem of how to try KSM and his buddies may be, well, not to bother:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

If this comes about, it will be a significant vindication for a much-derided idea that Jack and I and Eric Posner–particularly Jack–have been advancing for some time. Way back in 2005, Jack and Eric wrote this oped in the Post, which begins:

Everyone involved in the contentious negotiations between the White House and Congress over the proper form for military commissions seems to agree on at least one thing: that al-Qaeda and Taliban terrorists ought to be prosecuted. We think this assumption is wrong: Terrorist trials are both unnecessary and unwise.

Continue reading Benjamin Wittes at Lawfare