The Latest New York Times Editorial

Two quick comments on today's New York Times editorial: First, the Times begins with a remarkable normative assertion: "In bringing justice to those accused of plotting the Sept. 11 attacks, it will never be possible to have military trials at Guantánamo that Americans can be fully proud of, or that the world will see as credible." That's right, even before any trial begins, even without knowing a thing about how it will be conducted or what it will and won't allow, the Times is prepared to declare it impossible that one could proceed without shame. The most we can hope for, it seems, is that the inevitable trial of "questioned legitimacy" might nonetheless avoid "an utter legal shambles and administer some justice." There is more than a little self-fulfillment in the Times' prophesy here. One of the reasons, after all, that a military commission for Khalid Sheikh Mohammed and his comrades has a legitimacy problem is that the New York Times makes such a point, over and over and over again, of insisting that a military trial will bring shame on the country. And if the newspaper of record loudly insists, over many years, that an institution has a legitimacy problem, that fact alone will tend to create one. But the irony is that the Times is actually quite inconsistent on this point. Back in 2009, when the administration and Congress were rewriting the Military Commissions Act, the paper ran this editorial praising the effort. In contained no hint of the idea that military trials could never produce justice of which Americans could be proud. Indeed, the editorial board gushed that "We welcome the Obama administration’s fierce defense of the law and its efforts to fix the military tribunals." The trial the Times is now delegitimizing is, ironically, to be conducted under the terms of the very reforms that the earlier editorial was praising. Second, the current editorial contains the following passage:

Mr. Holder has said repeatedly that there is enough evidence to convict Mr. Mohammed, the self-professed mastermind of the 9/11 attacks, and the others without relying on evidence tainted by torture or coercion or on hearsay evidence likewise inadmissible in federal court. Mr. Mohammed was subject to waterboard torture 183 times — after, his interrogators have said, he gave up all the useful information he had (emphasis added).

Readers should let me know if it is I--and not the Times--who is in error here, but I don't think the italicized portion of this sentence is correct. I could be misremembering my Coercive Interrogation History 101 here; it's been a while since I picked at the scab of interrogation excesses circa 2003. But I think the Times has KSM confused with Abu Zubaydah. In the latter's case, FBI interrogators have suggested that he gave up useful information in non-coercive questioning by them and that the CIA got little extra by brutalizing him later. In KSM's case, I am unaware of any similar suggestion, though many people have certainly speculated that he would have given up everything useful he had to say under traditional interrogation techniques. I would certainly be interested to know of any KSM interrogator who has said that he gave up useful information prior to the use of highly coercive tactics.