As published for Foreign Policy Magazine on December 4, 2009:

The architect of the 9/11 attacks is headed to a criminal trial in New York — but Obama’s made a muddle of the rest of the legal picture.

The dust is settling on the Obama administration’s decision to send Khalid Sheikh Mohammed (KSM) — the confessed mastermind of the September 11 attacks — and four of his al Qaeda accomplices to face a criminal trial in New York. The decision highlights the premium Barack Obama’s administration has placed on using federal courts to hold terrorists accountable — as a matter of principle, a way to regain legal legitimacy, and a symbolic break from George W. Bush’s administration. But this move only adds to the confusion about what underlying legal principles the administration is applying and the approach it is using to prosecute the “war on al Qaeda.”

The Obama administration has decided to try KSM and the highest-value al Qaeda detainees in criminal trials, others in military tribunals, and yet others in no court at all, instead holding them indefinitely in preventive detention. In speeches and legal briefs, the president and his administration have cited the “war on al Qaeda” and the laws of war as the justifications for counterterrorism policies at home and abroad — everything from detention policy to the use of lethal force (as applied to, for instance, Saleh Ali Saleh Nabhan, a senior member of al Qaeda in East Africa, killed in Somalia in September). Missing in all of this is a coherent legal framework that clearly explains the basis for all of these decisions.

Indeed, the choice to try KSM and four other al Qaeda members in criminal courts underscores a lack of consistency and confusion. This could ultimately undermine the legal basis to hold terrorist detainees and hinder The United States’ ability to collect intelligence effectively in the field.

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