The decision to try accused 9/11 mastermind Khalid Sheikh Mohammed and his co-conspirators in New York has brought renewed attention to the thorny problem of how to deal with the detainees at Guantánamo Bay. The announcement followed the Obama administration’s admission that it will not meet its self-imposed January 22, 2010 for closing the Guantánamo detention center, although the administration is still intent on preparing a plan.
Measures to address issues such as indefinite detention, release, and repatriation and trials in U.S. courts continue to be controversial, and the plans for a New York trial have intensified the debate, as pundits and the public raise concerns about the potential security risk in Manhattan and the opportunity for extremists to find new motivations for violence in the proceedings and outcome.
Brookings Senior Fellow Benjamin Wittes answers questions during an online web chat about President Obama’s plans for closing Guantánamo, Khalid Sheik Mohammed’s upcoming trial and questions surrounding White House Counsel Greg Craig’s sudden resignation, strongly rumored to have resulted from the missed deadline. Politico’s Fred Barbash moderates the discussion.
The transcript of this chat follows.
12:28 Fred Barbash-Moderator: Welcome all. The topic today is Guantanamo, and, of course, the decision of the attorney general to hold terrorism trials in Manhattan.
Our guest is Benjamin Wittes, the Brookings fellow who focuses on the Supreme Court; judicial nominations and confirmations; and legal issues surrounding the war on terrorism.
Ben thanks for being with us. Let’s get started.
12:28 [Comment From Fred: ] So, Pres. Obama promised to close Gitmo in or by January 2010. Is that going to happen? What is the consequence if it doesn’t close soon?
12:29 Ben Wittes: It’s not going to happen, I’m afraid. There’s no chance any longer that the deadline will be met.
12:30 [Comment From Fred: ] Were you surprised by the decision to prosecute KSM in New York?
12:30 Ben Wittes: I’m not the slightest bit surprised. From the time President Obama issued his executive order to close Guantánamo, his administration has made it clear that it had a preference for dealing with Guantánamo cases by prosecuting detainees in U.S. federal courts. Indeed, the executive order itself openly reflects that preference. In fact, the administration initially studied whether it should scrap the military commissions system entirely. And it was rather a surprise when it decided to maintain the existence of an alternative tribunal. So it’s no surprise at all that in the highest profile case, the administration has decided to go with its preferred mode of adjudication. It would have surprised me had Holder proceeded any other way.
12:30 [Comment From Jason: ] Do you think the risks of trying KSM in a U.S. federal court are greater than trying him in a military commission?
12:30 Ben Wittes: I honestly don’t know. There are risks to both approaches, and it isn’t clear to me which risks are greater. Conservatives often talk as though trials in U.S. courts are a risky option, and trials in military courts the safe and secure one. This is wrong. The risks are different, but neither approach is risk-free.
12:30 Ben Wittes: The risks of trial in federal court are a combination of logistical problems, court rules that make terrorism trials challenging, and security challenges these cases pose for judges, prosecutors and jurors.
12:31 Ben Wittes: By contrast, military commissions have addressed some of these issues, but they create issues of their own. Most serious is the fact that the government has actually had great difficulty getting this system off the ground. There have been only three military commission convictions since 9/11 and no satisfyingly long sentences. And the system itself has been challenged successfully in court and has had to be revamped. The result is that we don’t really know today how well these trials will work—or whether the system is vulnerable to a successful challenge again. If you’re contemplating one of the trials of the century, that’s a pretty big disincentive to use it.
12:31 [Comment From ERic: ] Why are republicans so critical of the administration’s stance on the pending trials of the 9/11 suspects?
12:31 Ben Wittes: I think there are several overlapping reasons. Some conservatives are legitimately concerned about security problems. Some are concerned about the federal courts’ capacity to do the job—a concern that seems to me overblown as long as the number of cases is small. When the number of cases grows very large, the concern becomes, in my judgment, quite valid. Finally, and I suspect most importantly, there’s a symbolic issue. Conservatives tend to want to treat counterterrorism under a war framework and tend to be very suspicious of efforts to move towards a law enforcement framework for these cases. Military commissions are more of a war framework for trials. By contrast, liberals tend to be suspicious of a legal framework for counterterrorism based on the laws of war and have greater confidence in law enforcement approaches. The move to try KSM and the 9/11 conspirators in federal court, whatever its substantive merits, has the symbolic effect of pushing the country away from a strongly war-based model of the conflict with Al Qaeda and towards a more law enforcement-based model.
12:31 [Comment From Bill in VA: ] Do you give any credence to former VP Cheney’s assertion that a trial for KSM in New York only gives the terrorists a platform to spew their ideology? Can that even happen in a federal court room and if it does, so what?
12:31 Ben Wittes: The point is not frivolous actually. But it’s not as strong as Cheney thinks either.
12:32 Ben Wittes: It is true that a major federal trial is a great platform for a defendant who wants to spew hatred and motivate followers, rather than defend himself.
12:33 Ben Wittes: But it is also the case that a military commission proceeding, which is quite open and which gives the defendant lots of opportunity to address the court and defend himself, offers much the same opportunity. The international press would be at KSM’s trial in whatever forum. I’m not sure what extra he gets by having it in New York.
12:33 [Comment From Joe Suntum: ] Do you have any information, or update, on the status of the Task Force’s effort to make a recommendation to the President as to whether the U.S. should have a policy of preventive, or indefinite detention, and, if so, what that policy should be?
12:34 Ben Wittes: Well, the administration has decided not to seek legislation for the detention of those at Guantanamo–a significant defeat for those of us (I am one) who were arguing that Congress had an important role to play in that regard.
12:34 Ben Wittes: It remains unclear, at least to me, whether the administration will seek legislation to regulate the detention of those it captures in the future.
12:35 [Comment From John: ] I read somewhere that while Mohammed is being tried in New York, and that’s some great improvement for justice, there are still a bunch of other bad guys in detention who are not going to get a civilian trial. Isn’t that a contradiction?
12:35 Ben Wittes: I don’t think it is a contradiction, actually.
12:35 Ben Wittes: KSM–and other Al Qaeda operatives–are many things at once. They are criminals under the U.S. federal code, liable for trial in American courts.
12:35 Ben Wittes: They are war criminals liable to prosecution in military commissions under the laws of war.
12:36 Ben Wittes: And they are enemy combatants in a state of armed conflict, liable to detention under the laws of war without trial.
12:36 Ben Wittes: Which approach one takes to a given detainee will properly vary according to the circumstances of that particular detainee.
12:37 [Comment From Mark, Greenbelt: ] You hear that the decision to try KSM in New York is either a horrible security risk that will give the terrorists a worldwide platform to inspire admirers and copycats…or that it’s our chance to show that America is land which respects the rule of law and deals justice to even the most heinous criminals. What’s your take?
12:37 Ben Wittes: I think it’s a very defensible decision.
12:37 Ben Wittes: I also think trying KSM in a military commission would have been a very defensible decision.
12:38 Ben Wittes: The strongest argument against federal court trial, in my opinion, is the symbolic one I discussed above–that is, that it seems like a retreat from the wartime footing that President Obama insists we are still on. For that reason, I probably would have preferred that the administration ALSO maintain some charges against these guys in military commissions. But I have no objection to trying them in federal court.
12:39 [Comment From Laurie: ] Are there any real solutions to the mess in Guantanamo? Once those who can be tried are tried, what do we do with the est? Is it politically possible to bring them to the U.S., or send them elsewhere in the world?
12:39 Ben Wittes: I don’t think there are viable solutions for all of them and have been arguing for several years now that we were going to have to face the reality of long-term non-criminal detention no matter which political party controlled the White House or Congress.
12:40 Ben Wittes: Some can be tried, in one forum or another. Some can be sent home and set free (though not without incurring some degree of risk). Some can be resettled in third countries (again, with some added risk).
12:41 Ben Wittes: When all of that is done, there will be left over both a group whom we would like to free yet cannot find any country to take (at least for some period of time) and a group whom we cannot try and cannot risk setting free. We badly need a framework in which to handle those two groups.
12:41 [Comment From Karl Knapstein: ] Do you know anyone who honestly thinks 911 was an inside job?
12:41 Ben Wittes: Nope–or, at least, I don’t know anyone sane who does.
12:41 [Comment From Dave: ] What’s the advantage over trying KSM in a federal court vs. a military commission or war crime tribunal?
12:42 Ben Wittes: The advantages are three-fold:
12:42 Ben Wittes: 1) Greater international and domestic legitimacy and prestige. A lot of people at home and abroad don’t trust military commissions. Federal court trials are the gold standard. If you can do it there, you’ll have much less controversy.
12:43 Ben Wittes: 2) Stability of the system. These trials are going to be hard enough. At least in a federal court, you’re not going to have to litigate over the integrity of the tribunal. In military commission, you will.
12:44 Ben Wittes: 3) The rules are better known and better understood. We have tried a lot of people for terrorism in federal courts. While it’s a tough process, it’s one that prosecutors understand well. In military commissions, there have been very few successful cases–none of them good models. And everything is up for grabs.
12:44 [Comment From Wes: ] Is Obama being too “soft” on these detainees?? I feel like we need some drastic action.
12:45 Ben Wittes: I don’t think soft-hard is the right vocabulary here. Both the Bush administration and the Obama administration have been trying to reduce the number of people the United States is holding whom it does not need to hold. The Bush administration sent 500 people home from Guantanamo.
I’m not sure what drastic action you mean, but there aren’t a lot of options here.
12:46 [Comment From JJ: ] Is Guantanamo really a mess at all?? Would their detention not be any different at any other prison facility inside the US? Isn’t the only difference the high profile black eye the name Guantanamo has been given?
12:47 Ben Wittes: This is really an excellent and important question. The answer is that Guantanamo is a mess largely because it is highly visible and exposed to public criticism and litigation. But there aren’t really fundamental differences between American detention policy there and at many other facilities (involving many more detainees) where people haven’t complained much. In fact, conditions at Guantanamo are better–and review has been much more extensive.
12:48 [Comment From Maria: ] WHat do you think about Obama’s progress on this issue? He came out of the gate strong, but he’s going to miss yet another deadline. I understand this is a complicated issue, but it doesn’t seem like things are moving very quickly or efficiently.
12:49 Ben Wittes: It was a big mistake to put a deadline on this project–albeit one that most people (including me) didn’t understand as a mistake at the time. They have worked very hard on this yet progress has been hard to come by. This is because (a) the problems are hard, (b) other countries are being much less helpful than they expected, and (c) the options are few.
12:49 Ben Wittes: They have done a lousy job communicating their plans to the public–and have lost a lot of congressional support for the project as a result.
12:50 Ben Wittes: And they were over optimistic to start with.
12:50 [Comment From Kate: ] What do you make of Greg Craig’s resignation?
12:50 Ben Wittes: I don’t really know what to make of it and don’t want to be part of the rumor mill.
12:50 [Comment From Dave: ] Do you think the evidence of waterboarding and other torture issues will be detrimental to the US in the KSM trial?
12:50 Ben Wittes: This is a very interesting question.
12:52 Ben Wittes: I actually suspect it will play less of a role than many people believe. The reason is that I don’t think KSM has shown any sign of wanting to defend himself. In every forum he has had access to, his principal concern has been to take credit for 9/11. He also agrees with the government that he should be executed. So I’m not sure where his incentive to raise a lot of interrogation issues will come from.
12:52 [Comment From JJ: ] Isn’t the real major risk to an open trial the possibility that government could be strong armed into releasing classified information that could hurt the intelligence agencies for years to come?
12:53 Ben Wittes: Yep. That’s certain a major risk. But interestingly, that’s also a risk now in military commissions. One of the consequences of the revised military commission law is that the rules for handling classified material have come to resemble much more closely the rules in federal court. So while the government would have some advantage in that forum, it’s much less of one than people seem to imagine.
12:53 [Comment From Chico: ] What is your opinion about detainee photos and the courts ruling yesterday?
12:53 Ben Wittes: This is not an issue I have studied.
12:54 [Comment From Fran: ] What would happen if they don’t get a guilty verdict in NY?
12:54 Ben Wittes: They could charge them with other crimes–either in federal court or in military commissions. Or they could continue holding them as enemy combatants under the laws of war.
12:55 [Comment From Travis: ] PResident Obama and the prosecutors involved in the case seem really sure of the outcome, and have made some unfortunate statements about getting a guilty verdict. Do you think this will come back to bite them?
12:55 Ben Wittes: It is terribly irresponsible for prosecutors or other law enforcement officers (like the President) to make predictions about guilty verdicts. They simply shouldn’t be saying those things. And yes, it gives good defense lawyers material with which to work.
12:55 [Comment From Raj: ] How will the Guantanamo situation affect future war criminals? If there is no Guantanamo in the future, what will happen to alleged terrorists?
12:56 Ben Wittes: If there is no Guantanamo, people will be detained elsewhere…
12:56 [Comment From Susan: ] What is the most intriguing legal precedent that might be set with the closure of Guantanamo?
12:57 Ben Wittes: This is a very interesting question. I worry that that closure of Guantanamo will set the precedent that it is best to be dishonest about detention. Guantanamo is the most open and scrutinized facility we have.
12:57 Ben Wittes: People associate closing it with ending non-criminal detention, but it doesn’t mean that at all.
12:58 Ben Wittes: America will still do detention. We will just do it in facilities that are less accessible, less open to scrutiny, and farther away from the American consciousness than Guantanamo.
12:59 Ben Wittes: Moreover, just as European governments have long depended on the U.S. to do detention for them (they don’t participate in detention operations yet reserve the right to carp about them), we will tend to let Afghan forces do more and more of our detention for us.
12:59 Ben Wittes: The result will be that detention will grow ever less visible, and thus less controversial, but conditions will actually be worse. And accountability will too.
12:59 [Comment From Mike: ] Is there any chance that KSM’s confessions and eagerness to take credit for 9/11 could be a front? What if didn’t really do it and is just trying to get the credit from Al Qaeda or if he’s trying to cover up for someone else?
1:00 Ben Wittes: The evidence, even beyond his statements, of his involvement in and responsibility for 9/11 is overwhelming.
1:00 [Comment From JJ: ] Can it be taken that the Obama administration is taking the stance that detainees should be tried according to the level of their crimes and who they were committed against. For instance the KSM trial is being handled in US Courts because the most horrific “crime” perpetrated by those 5 terrorists was on US soil. Whereas others are being handled by military commissions because the acts perpetrated by those terrorists were in foreign countries against either the US military or other foreign parties?
1:01 Ben Wittes: I was very dismayed to see the administration make this argument–which I don’t think describes a coherent principle. After all, the attack on the Pentagon involved a quintessentially military target.
1:02 Ben Wittes: It seems to me that the real issue here is that the administration is using federal courts where it feels that federal court prosecutions are likely to be successful and using military commissions where they need to take advantage of the somewhat more lenient rules that prevail there.
1:03 [Comment From Adele: ] It the trial going to be open to an audience or to media? It seems a little nuts to me that the trial is going to be held in NY where the tragedy occurred. It is bound to be an extremely emotionally charged trial.
1:04 Ben Wittes: Federal court trials are presumptively open, yes. There are many proceedings, however, that get closed–particularly those involving classified information.
1:04 [Comment From Anna: ] It seems to me that the issue of giving KSM a trial is really hard for some people to understand and relate to. Some only see the terror of 9/11 and nothing else. What would you say to someone who thought KSM should be executed without any sort of trial?
1:04 Ben Wittes: Well, such an approach has been a war crime for more than a century now.
1:05 Ben Wittes: One can legitimately consider KSM as a criminal, and therefore give him a trial before punishing him. If one goes that route, one is entitled–depending on the nature of his eventual conviction–to execute him, but one has to give him a whole lot procedural protections first.
1:06 Ben Wittes: Or one can treat him as a enemy combatant, hold him until the end of hostilities without trial. But if one goes that route, one CANNOT punish him. Detention under the laws of war is for preventive, not punitive, purposes.
1:06 Ben Wittes: And then, of course, one can do both–that is, reserve the right to detain him but ALSO put him on trial for his alleged crimes.
1:07 [Comment From Sam: ] Back to the “Deadline” issue. Do you think Obama has made any major missteps in the process of closing Guantanamo that have caused the delays? It seems like he’s been pretty on target with his decisions, but the complicated nature of the issue is just taking a while to resolve.
1:07 Ben Wittes: Well, I think he made two major missteps–one of which may have contributed to the delays.
1:08 Ben Wittes: The first misstep–the one that didn’t contribute to the delays–is his decision not to seek legislation to resolve the dozens of open questions concerning these detentions. This is a big subject on which I will not elaborate here unless asked.
1:08 Ben Wittes: The second misstep–which probably did contribute the delays–is the failure after his executive orders to move swiftly to explain to the public and to Congress how he was going to carry out the closure.
1:09 Ben Wittes: The problem here was that in the absence of guidance about what he was really planning, every member of Congress had several months to imagine the worst: that lots of Gitmo detainees were going to end up in their districts.
1:09 Ben Wittes: And so in the context of this vacuum, Congress began putting roadblocks in the way of executive action.
1:10 Ben Wittes: These roadblocks have been a big problem for the administration–which bears some of (by no means all of) the blame for creating the environment in which they developed.
1:10 [Comment From Ray: ] I’ve heard a lot of people concerned about security risks related to KSM’s trial. What are people most concerned about here? Security at the trial itself? Or the visibility of the trial triggering another attack?
1:11 Ben Wittes: Several things: In past terrorist trials, judges have had to have security details for years after the cases were over. Jurors have required extraordinary measures to keep safe.
1:11 Ben Wittes: People are also worried about painting a big target again over lower Manhattan.
1:11 Ben Wittes: And I think some people are worried about attacks on the court itself.
1:12 Ben Wittes: The security associated with these trials is a very big undertaking, as anyone who lives near the federal courthouse in Alexandria Va (where Zacarias Moussaoui was tried) will tell you.
1:12 Ben Wittes: That’s not to say the trial shouldn’t happen, but the issue is a serious one.
1:13 [Comment From JJ: ] Yes the Pentagon is a military facility, but it is was attacked on US soil. So how would it not be coherent to make the selections between US courts and military commissions based on where the detainees terrorists acts were perpetrated as well as who they were perpetrated against?
1:14 Ben Wittes: I suppose one could use that as a standard of sorts. The trouble is that the traditional distinction between civilian courts and military commissions jurisdiction involves the nature of the crime–ie, military commissions try war crimes or crimes under the laws of war and civilian courts try crimes under the federal criminal law. The location of the target (domestic versus abroad) doesn’t really get to that distinction very well.
1:15 [Comment From Sevgi: ] KSM trial is now in the center of everyone’s, every country’s attention. What are the chances of the US failing in this trial? What are the potential consequences of this trial nationally and globally?
1:16 Ben Wittes: Any time you take on a trial of this magnitude and importance, there is a chance of failure. Trials are a complicated process, and this one has some serious additional complications (start with years of detention before charges were filed and an unusual dose of waterboarding thrown in).
1:17 Ben Wittes: The consequences of a failure would be huge. It would tremendously embarrassing and leave us with the yawning question of what to do with KSM.
1:17 Ben Wittes: That said, I don’t think the chances of a total system meltdown here are all that great.
1:18 Ben Wittes: For one thing, prosecutors have a friend in their defendant… who seems to just want to confess, boast, and be martyred.
1:18 [Comment From dave: ] what do you think about Obama’s decision to leave congress out of this issue?
1:18 Ben Wittes: It think it’s a dreadful decision.
1:18 Ben Wittes: I wrote a whole book about the need for Congress to get involved in designing the elements of American counterterrorism.
1:19 Ben Wittes: On the detention side, both the Bush administration and (so far) the Obama administration have preferred to marginalize Congress and go it alone. The Bush administration paid a huge price for that decision. Would that Bush’s successor had learned from the mistake.
1:19 [Comment From andy: ] where do you think Guantanamo falls in terms of Obama’s priorities for 2010?
1:19 Ben Wittes: Low.
1:20 [Comment From Art: ] What process do you think would be/should be applied if we captured Osama bin Laden … ALIVE?
1:20 Ben Wittes: This is an extremely important question on which people do not focus enough.
1:20 Ben Wittes: I actually wrote a whole model law to address this problem–and other problems of future captures.
1:21 Ben Wittes: I basically think we need a law allowing non-criminal detention with strict judicial supervision for renewable 6 month periods. This would both give government an opportunity to figure out what to do with a captive–and enable his incapacitation for some period of time.
1:22 [Comment From Mary: ] Why are other countries so reluctant to chime in with helpful input? They’re quick to point out mistakes or provide criticism but don’t have anything useful to say about this issue most of the time.
1:23 Ben Wittes: Another important question. This is a corner of the much broader U.S.-European relationship, in which European countries free-load off of the U.S. security umbrella and yet reserve the right to criticize the use of U.S. power.
1:23 Ben Wittes: The European countries refuse to participate in detention operations, yet Europe is probably one of the biggest beneficiaries of those detention operations.
1:24 Ben Wittes: (When U.S. counterterrorism efforts fail, the frequent results are attacks not here, but in Europe)
1:24 Ben Wittes: The reason is simply that Europe knows we’ll do it anyway. So this way, they get to strike a morally strong pose AND get the benefits of American action. It’s regrettable, but it’s a behavior by no means limited to detention.
1:25 [Comment From Jane: ] What happens to KSM after he is convicted (assuming that’s the outcome)? I mean, where do they take him to stay until … what, he’s executed I guess?
1:25 Ben Wittes: It’s hard to imagine that KSM would escape the death penalty if convicted.
1:25 [Comment From andy: ] Ok, if Guantanamo is low on Obama’s priority list, where do you THINK it should be?
1:26 Ben Wittes: I think putting American counterterrorism authorities on a strong legal footing for the long run is a matter of surpassing national importance. I don’t know how to weigh it against saving the economy, though. But we will pay a huge price if we don’t get this right. And we’ve wasted an enormous amount of time.
1:26 [Comment From Brie: ] I’m assuming that part of the problem here is that there’s no real precedent for this situation. Is Obama and his team drawing from historical experiences here at all? Are there any similar examples to follow?
1:27 Ben Wittes: Yes and no. There have been plenty of terrorist attacks and plenty of terrorist prosecutions. There have been no 9/11s in our past, however.
1:27 Ben Wittes: Moreover, there has never really been an incident in our history (at least on this scale) that is at once so obviously war and crime.
1:28 Ben Wittes: That creates a real quandary about how to think about the event–one we still have not really resolved.
1:28 [Comment From Jake: ] DO you think there will be any other trials of Guantanamo detainees in the US? Or will the proceedings in the KSM trial help determine that?
1:28 Ben Wittes: There will be more, though I’m not sure how many more.
1:28 [Comment From Jennifer Beasley: ] Why does Europe get attacked when our counter-terrorism efforts fail? Just because it’s easier and closer for the terrorists to strike European targets? Do they feel it has the same effect?
1:30 Ben Wittes: Europe is close to the region, has internally open borders and has done a much worse job of integrating immigrant populations. The result is that many European countries have a serious problems with radicalized domestic immigrant populations that American does not have. It’s more fertile ground for terrorism. Remember 9/11 was planned in Hamburg, not here.
1:31 Fred Barbash-Moderator: Thanks so much Ben and thanks to all our readers, with apologies to those whose questions we did not get to. We’ll be back here same time next week for the Brookings-POLITICO live chat.
1:31 Ben Wittes: Thank you all for the very fine questions. This has been great fun.