The Danger KSM Still Poses in Washington

The dust is settling on the Obama administration’s decision to send Khalid Sheikh Mohammed  (KSM) — the confessed mastermind of the September 11 attacks — and four of his al Qaeda accomplices to face a criminal trial in New York. The decision highlights the premium Barack Obama’s administration has placed on using federal courts to hold terrorists accountable — as a matter of principle, a way to regain legal legitimacy, and a symbolic break from George W. Bush’s administration. But this move only adds to the confusion about what underlying legal principles the administration is applying and the approach it is using to prosecute the "war on al Qaeda."

The Obama administration has decided to try KSM and the highest-value al Qaeda detainees in criminal trials, others in military tribunals, and yet others in no court at all, instead holding them indefinitely in preventive detention. In speeches and legal briefs, the president and his administration have cited the "war on al Qaeda" and the laws of war as the justifications for counterterrorism policies at home and abroad — everything from detention policy to the use of lethal force (as applied to, for instance, Saleh Ali Saleh Nabhan, a senior member of al Qaeda in East Africa, killed in Somalia in September). Missing in all of this is a coherent legal framework that clearly explains the basis for all of these decisions. 

Indeed, the choice to try KSM and four other al Qaeda members in criminal courts underscores a lack of consistency and confusion. This could ultimately undermine the legal basis to hold terrorist detainees and hinder The United States’ ability to collect intelligence effectively in the field. 

The Bush administration used a patchwork of courts to prosecute terrorists, and this approach can be criticized on many levels. But it relied on a clear law-of-war framework as the baseline for its decisions. Federal criminal trials were reserved for U.S. citizens or people captured in the United States, like Jose Padilla. With the KSM decision, the Obama administration has adopted a three-tiered hierarchy — criminal trials, military commissions, and indefinite preventive detention — without articulating clearly the basis for such a system. This undercuts the legitimacy of the entirety of the legal system applied to detainees.

To start, KSM’s trial could be seen as little more than a show trial. In the criminal justice system, the government presumes innocence. Common-law principles hold that it is better to let 10 guilty people go free than to have one innocent person suffer. But, as Sen. Lindsey Graham noted in a hearing with Attorney General Eric Holder, KSM and the four others will never be released from U.S. custody, regardless of the verdict. That’s a political and national-security reality that diverges from the requirements of the criminal legal system — turning the process into a grand legal fiction.

The KSM decision also effectively relegates military commissions to a second-tier legal system. The administration, which has revised the military commissions, is committed to relying on this process and now must defend it. This is hard to do when the criminal legal system is viewed as pre-eminent.

Additionally, the Obama administration has failed to clarify its venue-selection process. If the sole criterion is the government’s likelihood of securing a guilty verdict — as Holder has indicated — that too does damage to the credibility of the process. The administration appears to be "system shopping," choosing a court for the likelihood of success and admissibility of evidence rather than selecting it by the nature of the alleged offense. These contortions make the legal process look like a vast legal fiction used simply to justify detention.

Even more worrisome, looming on the horizon is the administration’s explanation that dozens of those remaining at Guantánamo will be held preventively — and that the administration will reserve the right to hold others without any trial, especially al Qaeda operatives picked up on the battlefield. But how will the Obama administration justify detaining some low-level al Qaeda operatives without charging them if the highest level al Qaeda detainees have access to criminal courts?

This muddle has a collateral effect: It calls into question the core principle of intelligence gathering and prevention as the primary mission of U.S. intelligence and law enforcement officials abroad. Are these professionals being asked to gather intelligence (which simply needs to be credible and useful) or evidence (which needs to be admissible in court)? The two activities are not exclusive, and the United States can and has done both. But U.S. operators in the field — along with their intelligence counterparts around the world — need clarity about what the United States is trying to accomplish in the first instance.

Thus, the administration’s legal approach could have detrimental intelligence-gathering consequences. If gathering evidence is the primary goal and criminal legal procedures apply to detained terrorists, then there will be less time and flexibility to gather information from detainees, who become defendants upon capture. Furthermore, if taking detainees into U.S. custody becomes too problematic or cumbersome, there will be an incentive to allow other countries to hold and interrogate individuals, leading to less usable information for the United States and a higher likelihood of human rights abuses.

Finally, the KSM decision is confusing due to its timing. There is yet no resolution on Obama’s overarching detainee policy, and come January, the prison at Guantánamo will remain open, with the legal fate of the majority of the remaining detainees unclear. Meanwhile, the legal landscape in the courts remains murky. There is no final judgment on whether habeas corpus rights apply to detainees at the U.S.-run prison in Bagram, Afghanistan, and the Supreme Court has not resolved whether the courts have the ability to order a detainee from Guantánamo released into the United States.

All of this uncertainty argues for coherency of policy and principle. The prior administration was hobbled by its inability to formulate a lasting and credible legal framework for detention. This president can use his credibility to shape, articulate, and defend lasting legal principles and practices. He has already committed to the war paradigm in his speeches. Now the United States needs to be consistent in its application of this principle and in its defense of its legality.

The trial of KSM and his cohorts will no doubt be the trial of the century, and the prosecution has to succeed. But let’s hope the decision to hold them accountable in the criminal system doesn’t undermine America’s ability to defend the very legal principles and practices that help defend the country against al Qaeda and its allies.