Brookings Institution, October 29, 2010
Here’s a simple proposal to break the impasse over how to proceed against Khalid Sheik Mohammed and his colleagues: Press charges in both military commissions and in federal court. Call it the John Allen Muhammad model.
The 2002 D.C. area sniper case is strangely instructive in planning the trials of the Sept. 11 plotters. Recall that when Muhammad and accomplice Lee Boyd Malvo were captured, several of the jurisdictions in which they had killed people filed charges. Virginia authorities were allowed to proceed first and given custody, but the other jurisdictions held their cases in reserve. Maryland prosecutors pursued their case even after Muhammad and Malvo were convicted in Virginia. If by some fluke the Virginia trials had ended in acquittals, other states would have proceeded.
Fast-forward to KSM and his fellow plotters. These men are undoubtedly war criminals who can be tried by military commission. They are also undoubtedly criminals under a gazillion different sections of the U.S. Code. Proponents of military commissions believe deeply that commissions are the most viable trial forum and symbolically important for stressing that America is at war. One reason they so viscerally oppose trying the Sept. 11 conspirators in federal court is that it mutes that symbolism and makes terrorism a law enforcement matter.
Proponents of federal court trials believe with equal sincerity that federal courts offer the most pragmatic answer and the best way to honor the rule of law. For them, the failure to use federal courts bespeaks a lack of faith in American justice, an effort to circumvent our values.
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Benjamin Wittes 