Co-authored with Jack Goldsmith, The Washington Post, March 19, 2010
The Obama administration and its critics are locked in a standoff over whether to try Khalid Sheikh Mohammed and the other alleged Sept. 11 conspirators in a military commission or in federal court. Both sides are busily ignoring the obvious solution: Don’t bother trying them at all.
Mohammed has already spent more than seven years in military detention. Both the Obama administration and the Republicans who object to trying him in federal court accept the legitimacy of such detention as a traditional incident of war for those in the command structure of al-Qaeda, and perhaps for associated forces as well. In general outline, so do the courts. Given these facts, the politically draining fight about civilian vs. military trials is not worth the costs. It also distracts from more important questions in the legal war against terrorism.
The question of trial forum is important in certain cases. Before the Obama administration embraced the propriety of military detention, it was important for Mohammed too. If one intends to hold people only pursuant to criminal charges, as some in the Obama administration once suggested, the nature of those charges and the forum for them matter a lot.
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Benjamin Wittes 