Bush Lawyers Support KSM Trial

Former Bush administration Justice Department lawyers Jim Comey and Jack Goldsmith argue for the civilian trial of 9/11 mastermind Khalid Sheik Mohammed in a Washington Post editorial (h/t Andrew Sullivan).

Reasonable minds can disagree about Attorney General Eric Holder's decision to prosecute Khalid Sheik Mohammed and four other alleged Sept. 11 perpetrators in a Manhattan federal court. But some prominent criticisms are exaggerated, and others place undue faith in military commissions as an alternative to civilian trials. One reason commissions have not worked well is that changes in constitutional, international and military laws since they were last used, during World War II, have produced great uncertainty about the commissions' validity. This uncertainty has led to many legal challenges that will continue indefinitely -- hardly an ideal situation for the trial of the century.

By contrast, there is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder's critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists, including "shoe bomber" Richard Reid; al-Qaeda agent Jose Padilla; "American Taliban" John Walker Lindh; the Lackawanna Six; and Zacarias Moussaoui, who was prosecuted for the same conspiracy for which Mohammed is likely to be charged. Many of these terrorists are locked in a supermax prison in Colorado, never to be seen again.

Critics of Holder's decision fear a great propaganda victory for al-Qaeda in the inevitable publicity surrounding such a trial. I have a hard time imagining KSM resisting the opportunity to spout the group's typical hateful, extremist rhetoric. I have a harder time still with the idea that such nihilistic jibberish will be an effective recruiting tool, particularly when contrasted with the context of a fully open and fair trial.

--Ballard Burgher