Do We Have a Winner?

The first Lawfare contest--to come up "with a strategy for KSM that is both unambiguously lawful under [the law as stated in recent] New York Times editorials and politically conceivable on Planet Earth"--may have a winner. I say "may" because by the account of the submission's own author, Luis M. Dickson, "under any restriction more stringent than 'politically conceivable on Planet Earth,' this wouldn't qualify as an answer." Mr. Dickson, a visiting researcher at the Georgetown Center for National Security and the Law, emphasizes that he is "not suggesting this, and not recommending it. . . . But it's interesting to see just how beyond the pale this suggestion would be in today's political climate." Here is his plan for, as he puts it, transferring "KSM et. al. to a regularly-constituted, respected court without breaking any laws, or any political/legal principles implied by the New York Times." The proposal, he promises, "scrupulously follows the letter and, at least quite arguably, the intent of the transfer bans, stands against indefinite detention, moves the detainees to an area almost certainly more hospitable than Gitmo, and definitely does not pander to the Congress."

First, the Obama administration declares that it can no longer hold KSM et. al. indefinitely, and it refuses to put them on trial before a military commission. It declares that it will take a new step in the approach to the War on Terror, and that will be to trust  in the judgment of the International Criminal Court. It explains that such a move will advance the War on Terror and put terrorist organizations into a weaker international  position by building an international terrorism jurisprudence. Second, exactly 31 days before effectuating the transfer, Secretary Gates certifies, and Sec. Clinton confirms, in compliance with the relevant transfer restrictions [Sec. 1033 of the National Defense Authorization Act for Fiscal Year 2011], that:

1. France/Germany/U.K. (pick your favorite) is not a state sponsor terrorism, and the ICC is not a designated foreign terrorist organization  (All three countries are signatories to the Rome Statute, and at least in the case of KSM et. al., the ICC should have jurisdiction over relevant crimes against humanity, and possibly war crimes);
2. France/Germany/U.K. controls the detention facility which will house KSM et. al. temporarily (see below);
3. France/Germany/U.K. faces no threat to its ability to control detainees.
4. France/Germany/U.K. has agreed to take effective steps to ensure that the individual cannot take action to threaten the United States, its citizens or allies in the future, in the following manner:
   • It will immediately refer KSM et. al. to the International Criminal Court;
   • And will hold/monitor them strictly to the limits of international and their domestic law;
   • Any further assurance that the individual 'cannot' take action would likely violate due process, and so the administration interprets H.R. 6523 Sec. 1033 (b)(4) as not commanding any violation of  other applicable laws, or constitutional provisions, and invites France/Germany/UK to do likewise.
5. France/Germany/UK agree to take steps to ensure that the detainee cannot "engage or re-engage in any terrorist activity," subject to the understanding of Point 3.
6. France/Germany/UK agree to to share any relevant information regarding the detainee or his associates, subject to the understanding of Point 3.

Third, Sec. Gates certifies that the recidivism clause does not apply--there being no recidivism from repatriations to France/Germany/UK--or instead waives the provision by citing the urgent national security need to legitimate the U.S. treatment of detainees so as to ensure the forthright cooperation by our European allies, and, citing the advice of Gen. Petraus, to aid the U.S.'s national security efforts in Afghanistan by removing the symbol of Guantanamo.

I think Mr. Dickson is correct: As far as I can tell, his plan does not violate any of the principles which the New York Times has articulated.