Commentary Magazine


A Bipartisan Terror Trial

It’s nice to know that, according to the Washington Post, “President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001,” although this raises the obvious question of why he hadn’t inserted himself into the debate before now. If George W. Bush had done something like this, he would have been accused of being dangerously disengaged, intellectually uncurious, etc. It is no doubt expecting too much to expect the MSM to lodge similar accusations against the current president.

But now that Obama is getting engaged, I hope this former law professor looks beyond the options currently on offer — civil trial vs. military commissions — and puts his influence behind a third possibility: National Security Courts to be run by federal judges but with special rules of procedure to make it easier to convict terrorists. There would, for example, be no demand for Miranda rights and no absolute bar on hearsay evidence. This is a proposal that has been knocking around for a while and has picked up bipartisan support — including that of liberal law professor Neal Katyal, conservative law professor Jack Goldsmith, conservative former prosecutor Andrew C. McCarthy, and centrist journalist Stuart Taylor Jr. Yet it has gone nowhere in Congress. This is an issue where the liberal-conservative divide appears bridgeable, if only Obama would put his personal prestige behind the proposal.