A Brief Reply to Andrew Rosenthal

I only noticed this morning that New York Times Editorial Page Editor Andrew Rosenthal had this blog post in advance of the KSM arraignment--responding, in part, to my Washington Post oped of Friday:

Benjamin Wittes, who writes the Lawfare blog, is optimistic. “Today the commissions’ prosecution and defense sides have first-rate staff,” he wrote on the Op-Ed page of The Washington Post. “Cooperation between the Defense and Justice departments — where much of the expertise for complex counterterrorism prosecutions resides — has been greatly enhanced. The military judge who has presided at recent cases and is scheduled to preside Saturday would do credit to any federal trial court in the country.” That may be true, but I continue to believe that Mr. Mohammed and the other four defendants should be tried in federal courts. That’s what the Obama administration wanted initially. But Attorney General Eric Holder bungled the politics, and members of Congress seized on the chance to bar trials of these men – and any other Guantanamo Bay detainee – in civilian courts. If Congress had its way, military courts would handle all terrorism trials, defying not only the principles of American justice, but also common sense and experience. There are many reasons why the military commission system seems inadequate to me. Here’s one: delayed justice. Pakistan intelligence agents first captured Mr. Mohammed on March 1, 2003—more than nine years ago.

As it happens, I share Rosenthal's preference for federal courts as a venue for this trial--although I wish human rights groups and like-minded journalists would accept that that particular train has left the station. Rosenthal's post, however, seems to me to call for a brief reply because the one reason for his position actually does not support his case. The delay in seeking justice would be no shorter if the trial took place in New York. Nor is there much reason to think that the federal courts would not tolerate the delay that has already taken place. In the one case in which a detainee was brought from Guantanamo to face trial in New York, that of Ahmed Ghailani, the federal court in question did not dismiss on speedy trial grounds. What's more, if one really believes that a speedy trial clock began tolling at the time of capture, as opposed to the time of some later initiation of criminal proceedings, that would seem to me to preclude trial at all. So of all the differences that might reasonably make one prefer a civilian trial to a military commission, I don't think that trial delay carries the ball very far. It may be an excellent argument against military detention preceding trial, but it's not a good argument for one trial venue over another.