Most of the debate over Khalid Sheikh Mohammed's trial has been over where and how to try him--civilian vs. military trial; the merits of New York City as a potential venue--and Vice President Joe Biden's back and forth with former Vice President Dick Cheney over the weekend was no exception.
But Biden's appearance on "Meet the Press" pointed to another aspect of the trial process, one that has received some attention, but not as much: whether KSM will indeed be convicted, and what happens if he's not.
The executive branch of the federal government, responsible for prosecuting Mohammed, has been outspoken in promising that the jury will convict him, and Biden sounded that line again on Sunday.
"Look, there's no doubt that he would not be acquitted; the facts we have are overwhelming. We're absolutely confident he will be convicted in whatever for he is tried," Biden told NBC's David Gregory.
What remains technically unclear is what will happen if KSM is not convicted--a chance, as negligible as the administration has posed it, that is being left open by bringing him to trial in civilian court.
Critics of the civilian-trial approach have suggested that, if KSM is acquitted, he could be released into the continental United States, but Attorney General Eric Holder has ruled this out completely. No matter what the jury decides, it seems, Mohammed will remain a prisoner in U.S. custody.
Biden said he wouldn't speculate on what would happen were KSM to be acquitted--but he did repeat the assertion that, acquitted or not, KSM will not walk free in the U.S.
"What the attorney general said, he would not be released into America, that is a fact. But we're not even going to have to get to that place. I'm not going to speculate on what would happen to him if, in fact, he were acquitted. I assure you, I assure you, acquitted or not, he will not be walking the streets of the United States of America. He will not be acquitted," Biden told Gregory.
If KSM is to remain imprisoned after an acquittal, his indefinite detention would be in a military facility, and it would rest on wartime authority--the idea that America is continually at war with al Qaeda terrorists--something civil libertarians have railed against as the Bush-originated "Global War on Terror" has itself dragged on indefinitely.
President Obama has dropped the "GWOT" nomenclature for some of the same reasons civil liberties groups opposed it--but he has been very clear in his public statements that he believes the U.S. is indeed "at war" with al Qaeda terrorists in the broad sense, not just in the wars the U.S. military is fighting in Afghanistan and Iraq. Continued military drone strikes in Pakistan seem to support that.
Civil liberties groups like the ACLU and the Center for Constitutional Rights have objected to the continued paradigm of indefinite military detention more forcefully than almost any other action the Obama administration has taken, even as the administration seeks to empty the cells of Guantanamo Bay and limit the use of indefinite detentions, while not doing away with them completely.
As far as legal precedent goes, University of Texas law Prof. Robert Chesney, an expert in national security and constitutional law, says there's no clear precedent for what would happen if KSM were to be acquitted, but that the possibility of detaining him after an acquittal isn't far fetched.
"If you don't accept that there is a basis to hold someone in military detention in the first place," Chesney said, "then of course you would object to the continued use of military detention in the event of a prosecution resulting in acquittal. But if you accept that the government has the option of simply holding a person in military custody without charge, then it is not obvious that you have to release a person in the event of an acquittal."
Chesney pointed to the case of German saboteurs who snuck into the United States during World War II and were prosecuted and convicted of war crimes by a military commission.
"Had they instead been acquitted, the Roosevelt administration presumably would have continued to hold these men in military custody so long as the war continued," Chesney said.
If seeking to try KSM in a civilian court has moved the Obama administration away from legal paradigms of being at war terrorists in a broad sense, promises of continued detention for KSM--regardless of what would happen in a civilian trial--keep that ideology close at hand.
Holder says it's important "what the world sees" in the trials of KSM and the other alleged 9/11 conspirators--presumably, that the U.S. extends fairness even to its worst enemies, and that there is faith in the U.S. justice system.
At the same time, Holder, Biden, and the rest of the administration must assure the public that a civilian trial does not carry the risk of Mohammed and the others walking free--either in the U.S., or elsewhere in the world--to wreak havoc.
And in order to maintain that assurance, the administration must continue some of the practices that have brought criticism from the civil liberties community. If KSM is convicted, he will likely be moved to federal prison, but the idea of continued military detention is still being employed, perhaps as a safety net in KSM's instance.
Neither Obama nor Holder has claimed that the U.S. is not at war with terrorists, but there those, particularly on the left, who don't like the idea of continued wartime authority.
One question facing these proceedings is: if it doesn't matter what the jury says--if KSM will remain in detention either way, in federal prison if convicted, and in military detention if acquitted--is this a fair trial? If the possibility of military detention is maintained, does the administration gain anything--ethically, politically, or legally--from trying KSM in a civilian court instead of a military one?
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