A Prosecutor's Response

Today, I had an exchange with a distinguished former terrorism prosecutor for whom I have enormous respect about my oped this morning and my earlier Lawfare proposal for multiple-venue prosecution of the 9/11 conspirators. My correspondent, who prefers to remain anonymous, wrote:

I write because I find myself in rare disagreement with you. Your split-the-baby approach has a certain appeal, but serves to underscore the stunning lack of political leadership on the issue. I believe it is imperative to choose a principled course, articulate the rationale for it, and move forward. It is far less important to make everyone happy, particularly where so few people are well-informed--or even engaged--on the issue. And, as you know, a little bit for either side will inevitably make both sides unhappy. Further, prosecutors should not have to be more "creative" or more careful than they already are. That job is hard enough without having to worry about someone else's prosecution. Pick a venue (or keep them in detention, as you prefer) and proceed. Both options at once seem less attractive to me than either option alone.

In a subsequent emails, he clarified that "My intent is not solely to criticize the current leadership, as I have seen abdications of responsibility across the political spectrum." And he went on:

As an option, it reminds me of the answers I hated most on multiple choice tests: (D) A and C, but not B (E) A and B, but not C

His point is well-taken. My proposal arguably makes a messy legal matter messier. Indeed, it adds legal complexity to the case in the name of reducing political complexity--which, by giving everyone a little and nobody a lot, it might not even succeed at doing. His implicit point that I am straining to find a gimmick to relieve politicians of the burden of leadership, for which no gimmick can truly substitute, has more than a few grains of truth. To be sure, I do not hold this out as the optimal solution. As Jack and I have both said before, it is far from clear that the optimal solution is to have a trial at all. And even once one decides to hold one, I don't think the optimal way to go about it is knowable without a very fine-grained analysis of the available evidence and how that evidence would fare under the rules of two very different tribunals. I don't doubt that the right resolution is for the administration to make its best professional decision about where the government has its best chance of making its best case and then announcing that decision, implementing it, and taking the political heat for doing so. But that has not happened; what has happened instead is paralysis. And at this point, we need some means of breaking the paralysis. My point is that the list of legitimate options to accomplish that task is a little bit longer than we sometimes acknowledge. And the choice among them is not simply a question of principle, but also a question of politics. The answer that works best may not be the optimal one from a prosecutorial point of view. At this point, I am willing--eager even--to support an answer that almost never appears on a multiple choice test: "(F) Any or all combinations of the above."