The Corner

Who’s on Trial — KSM or GWB?

Andy and I had a brief e-mail exchange about the topic this weekend, but I would have a hard time saying it better than his column this morning on Obama’s decision to put KSM on trial in civilian court. While I’ve been in Washington long enough to know that guessing motives is a difficult if not dangerous task, I have a hard time finding a good-faith motive in the president’s decision to try KSM in civilian court. If the Military Commissions Act of 2006 were drawn up for any one person, it would have been Khalid Sheik Mohammed. Indeed, as Andy noted in a post this weekend, even then Senator Obama recognized during debates on the Act that that KSM had to be tried before a military commission. The decision to try KSM in civilian court accomplishes indirectly what Obama does not wish to do directly — it puts the Bush administration’s interrogation tactics on trial for all the world to see. Notwithstanding the bloodlust of his base, Obama will not bring prosecutions against the proponents of those measures because he recognizes that the vast majority of Americans supports them as necessary tools to protecting America. But by bringing a criminal indictment against KSM, Obama leaves the dirty work of attacking the lawfulness of those measures to KSM’s lawyers (or KSM himself), leaving his hands nominally clean of the “mess” (a term he frequently uses to describe President Bush’s tenure). The tools to bring KSM to justice were painstakingly debated and adopted by Congress and enacted in the Military Commissions Act. There is simply no reason not to use them in this case. The decision is particularly risible in light of the administration’s decision to use a military tribunal in the case of the U.S.S. Cole bombing. If anything, the case for civilian trial may be better, not worse, in the case of the Cole bombing, since the FBI took the lead in that investigation and would have handled evidence consistently with a criminal investigation. That was never the purpose of the KSM interrogations, and Obama knows that. Feeding the case to criminal defense lawyers will let him put his predecessor on trial, damned be the consequences.