The New York Times Editorial Page's Bizarre Legitimacy Dance

I could pick factual nits with today's New York Times editorial on the referral of charges in the Khalid Sheikh Mohammed case. If I were in that sort of mood, I'd start with the first sentence, which reads: "The Pentagon’s prosecutors formally charged Khalid Shaikh Mohammed and four other men last week with war crimes for planning and carrying out the murder of 2,976 people on Sept. 11, 2001, and referred their case to a constitutionally flawed military tribunal that will be convened at the Guantánamo Bay detention camp, a global symbol of human rights abuses." Actually, the Pentagon's prosecutors formally charged KSM and his buddies a while back. What happened this past week was that the Convening Authority--who is not a prosecutor--referred their cases for trial. But I'm not in nit-picky kind of mood today. The sun is shining. I have a great day ahead of me, brimming with aikido and podcast editing. And the truth is that I'm getting grouchy about not being paid by the Times for the fact-checking work I do for their editorial page. So I'm going to content myself with pointing out one bizarre aspect of the editorial's argumentative trajectory: the Times seems to be suggesting--probably accidentally--that a trial's legitimacy may not depend on its constitutionality. The Times begins, as quoted above, by labeling the military commissions "constitutionally flawed." It goes on to call "this system and this place . . . the worst way to administer justice to the 9/11 terrorists." It goes on to say that President Obama promised to "restore the rule of law to the treatment of terrorism suspects" but "has largely failed"--thus suggesting that the handling of detainees remains lawless. It labels reformed military commissions as "still profoundly flawed." And it rounds it all off by quoting the ACLU's Jameel Jaffer as asking of the CIA's interrogation program: "if someone emerges from this kind of system and then supplies a confession or a guilty plea, how confident can we be that the statement is untainted by torture? Imagine that another country—Iran, say, or North Korea—proposed as much. Would we buy it?” Given this windup, you might expect the editorial's final paragraph to call for scrapping the military commission case against KSM. Why, after all, should the U.S. conduct a profoundly-flawed, constitutionally-dubious trial that represents a failure to restore the rule of law--indeed, that is comparable in some sense to Iranian or North Korean justice? But that's not how the Times concludes. The final paragraph opens: "We hope General [Mark] Martins’s commitment to justice will persuade a highly skeptical world to accept the legitimacy of these trials." Now why on earth would we hope that? I mean, I certainly hope the world will accept the legitimacy of these trials, but that is because I don't think they are profoundly--constitutionally--flawed and a derogation of the rule of law and all that jazz. If I really believed that these trials were unconstitutional or that, as the Times says in the very next sentence, "this country has in the last decade accepted too many damaging and unnecessary changes to its fundamental principles of justice and human rights," it would seem to me a matter of patriotic duty to root for the system's failure in legitimizing those changes. And if, to take the point a wee step further, I really believed that we're engaged in an exercise of North Korean justice here, then I think would have to see Gen. Martins not as someone brimming with a "commitment to justice" but as a particularly-polished and seductive, and therefore dangerous, functionary of that American Kim Jong Un, Barack Obama. Why would one root for such a person to snooker the world into taking this system seriously--and with eyes wide open about what the system really is? One does not seek legitimacy for evil. If, indeed, the commissions are as bad as the Times insists they are, the Times owes its readers an earnest prayer for their failure--or, at least, for their further reform. Conversely, if the Times is actually rooting for their success, it has to be because ultimately, there's at least a whiff of hyperbole in the denunciations.