I’ve spent some time on this blog marveling at the Obama administration’s shifting position about how to administer justice to alleged terrorists and where to try Khalid Sheikh Mohammed (see e.g., here, here, here and here). All last fall, Eric Holder portrayed the decision to try KSM in a New York district court as a demonstration of the administration’s reverence for the rule of law. But there has always been a comical disparity between his readiness to treat trying KSM before a civilian court as a matter of high principle, and his demonstrated incapacity to identify what the operative principles are. When Holder was asked about why it would undermine the rule of law to try KSM before a military commission he'd retreat to an enchanted circle: trying him in civilian court upholds the rule of law, he'd insist, because it burnishes our reputation for upholding the rule of law. He could never bring himself to explain why we should particularly care about the approval of people who were as incapable of explaining themselves as he was.
That left the administration in a strange political predicament after it was obliged to retreat from a civilian KSM trial in New York City in the face of public outrage and the opposition of New York’s mayor and two Democratic Senators. It still has to contend with voices from the right claiming that its legal positions about the administration of justice respecting alleged terrorists aren’t so much incorrect as empty-headed. And now the administration's also getting buffeted from the left by civil libertarians deploring its betrayal of still-unidentified legal principles.
Here’s Josh Gerstein quoting charges by well-respected civil libertarians that the administration’s now undermining the rule of law. Note that the administration's critics from the left aren't any more explicit than Holder is about exactly what legal principles trying KSM before a military commission would betray:
Now it’s looking like Holder and the admistration's high-minded rhetoric about the rule of law was a bluff all along. If you believe Charlie Savage’s article in yesterday’s New York Times, the top legal minds in the administration have never been able to agree among themselves on what legal principles should govern the administration of justice respecting alleged terrorists and, to this day, still haven’t settled on a coherent legal approach:“What’s at stake is the whole national security narrative — who was right and who was wrong about the best way to fight terrorism over the last eight years,” said Tom Malinowski of Human Rights Watch, a proponent of using the regular justice system.
“‘If they compromise on this one, the Republican response will be to continue to go after every Democratic member of Congress and senator up for reelection in November and say they’re a member of a party that had the crazy idea of wanting to hold terrorism trials in civilian courts. And they’ll be able to add the kicker that President Obama admitted that he was wrong.’
“Already unhappy with what they see as Obama’s failure to reject other Bush policies, liberal critics seem to be hoping that Holder makes any reversal of his decision on KSM a point of principle.
“‘If that’s the way it unfolds, it seems to me Attorney General Holder has to address the question of resignation,’ said Eugene Fidell, a Yale Law School lecturer and expert on the military justice system. ‘The question is, How much of this medicine can you stand?’”
Legal questions about terrorism don’t get any more basic, and harder to answer, than the one that Noah Feldman poses. So you can’t blame top-notch administration lawyers for disagreeing among themselves. Yet it’s getting awfully late in the day for any administration not to have made up its mind on matters this pressing, especially one that hasn't resisted the temptation to lecture us incessantly about the rule of law.“Senior lawyers in the Obama administration are deeply divided over some of the counterterrorism powers they inherited from former President George W. Bush according to interviews and a review of legal briefs.
“The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.
“The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.
“‘Beyond the technical legal issues, this debate is about the fundamental question of whom we are at war with,’ said Noah Feldman, a Harvard law professor who specializes in war-power issues. ‘The two problems most plaguing Obama in the war on terrorism are trials for terrorists and taking the fight beyond Afghanistan to places like Pakistan and Yemen. This issue of whom we are at war with defines both of them.’”