{"id":979,"date":"2010-04-03T16:06:20","date_gmt":"2010-04-03T23:06:20","guid":{"rendered":"http:\/\/www.harvardnsj.com\/?p=979"},"modified":"2010-04-03T16:06:20","modified_gmt":"2010-04-03T23:06:20","slug":"novel-arguments-in-the-ksm-debate","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2010\/04\/novel-arguments-in-the-ksm-debate\/","title":{"rendered":"Novel Arguments Offered in the KSM Debate"},"content":{"rendered":"

By Mat Trachok, NSJ Staff Editor<\/strong> –<\/p>\n

According to the Washington Post<\/em>, White House advisers recently stated<\/a> that alleged 9\/11 mastermind Khalid Sheikh Mohammed (KSM) will most likely be tried before a military commission.\u00a0 However, the debate still rages.\u00a0 Last November, NSJ provided a brief overview<\/a> of arguments for and against trying KSM in civilian courts.\u00a0 While many of the arguments in the current debate are substantially similar to those put forward last fall, Foreign Policy<\/em> magazine and the Washington Post<\/em> recently published three unique arguments on the topic.<\/p>\n

Writing in Foreign Policy<\/em>, Benn Steil of the Council on Foreign Relations and Peter J. Wallison of the American Enterprise Institute argue that<\/a> trying KSM in a civilian court could undermine global faith in America\u2019s respect for the rule of law.\u00a0 Steil and Wallison point out that President Obama and Attorney General Holder have \u201cconfidently predicted the death penalty for Mohammed, while simultaneously insisting that he will receive a \u2018fair trial.\u2019\u201d\u00a0 They contend that for a trial to be fair, the state must respect any outcome.\u00a0 While they acknowledge the possibility of KSM being acquitted is remote, they insist that the possibility exists. \u00a0However, Steil and Wallison also believe it would be inconceivable for the Obama administration to let KSM go free. \u00a0Thus, they conclude, a civilian trial would be an obvious, cynical political cover for KSM\u2019s execution.<\/p>\n

In contrast, Tom Malinkowski, the Washington director of Human Rights Watch, argues that<\/a> the United States should try KSM in a civilian court because he does not deserve the honor of a military trial. \u00a0According to Malinkowski, military trials are reserved for warriors; civilian courts are the proper venue for murderers, rapists, drug dealers, pimps, and terrorists. \u00a0Terrorist organizations actively seek to portray themselves as warriors, because it helps them justify their crimes and recruit glory seekers.\u00a0 Trying KSM in a civilian court, Malinkowski argues, would both frustrate al Qaeda\u2019s intentions and present KSM to the world as the common criminal he is.<\/p>\n

Jack Goldsmith of Harvard Law School and Benjamin Wittes of the Brookings Institution take a third approach and argue that<\/a> the Administration should not try KSM at all. \u00a0According to Goldsmith and Wittes, trying KSM before a military commission would create unacceptable legal and political risks. \u00a0Military commissions raise novel legal issues that might take years to sort out, which would render them ineffectual. \u00a0Moreover, the American Left and many Europeans see military commissions as illegitimate and would seek to ensure others also shared that view.\u00a0 Yet Goldsmith and Wittes also argue that, even though the benefits of a civilian trial \u2014 the option of the death penalty, enhanced legitimacy abroad, and some catharsis \u2014 are significant, they are not worth the political costs that the Administration has been paying. \u00a0Instead, they believe President Obama should simply hold KSM and other terrorists indefinitely in military detention. \u00a0Indeed, they see military detention playing a vital role in incapacitating terrorists for some time. \u00a0Moreover, they point out that President Obama, Republicans, and the courts have already accepted the legitimacy of detention. \u00a0Instead of wasting energy arguing over which forum in which to try KSM and other terrorists, they contend that both sides should focus on defining the contours of the detention system.<\/p>\n

NSJ will continue to cover the trial of KSM and other terrorists as new developments unfold.<\/p>\n

Image courtesy of Getty Images, via Life Magazine<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By Mat Trachok, NSJ Staff Editor – According to the Washington Post, White House advisers recently stated that alleged 9\/11 mastermind Khalid Sheikh Mohammed (KSM) will most likely be tried before a military commission.\u00a0 However, the debate still rages.\u00a0 Last November, NSJ provided a brief overview of arguments for and against trying KSM in civilian courts.\u00a0 While many of the arguments in the current debate are substantially similar to those put forward last fall, Foreign Policy magazine and the Washington Post recently published three unique arguments on the topic. Writing in Foreign Policy, Benn Steil of the Council on Foreign […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-979","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_shortlink":"https:\/\/wp.me\/peZtUX-fN","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/979","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/comments?post=979"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/posts\/979\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/media?parent=979"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/categories?post=979"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/nsj\/wp-json\/wp\/v2\/tags?post=979"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}