Touting what they call Eric Holder’s “reasonable decision” to transfer Khalid Sheikh Mohammed and four other 9/11 plotters to Manhattan for a civilian trial, my friends Jim Comey and Jack Goldsmith put themselves in a quandary. When their Washington Post op-ed makes a reasonable point, it presents their own reasoning, not Attorney General Holder’s. On the other hand, when they address the rationale Holder actually offered for his decision, even they have to admit that a core part of the attorney general’s argument is bogus. Comey and Goldsmith are very able lawyers, and Lord knows that is what Mr. Holder needs here, but Holder’s decision — in reality, President Obama’s decision — is unreasonable, and these former top Justice Department officials are unpersuasive in contending otherwise.

COMMISSION RECORD
Comey and Goldsmith make their strongest point when discussing the spotty performance of the military-commission system. As they recount, “The only person who had a full commission trial, Osama bin Laden’s driver [Salim Hamdan], received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.” I’ve complained about that trial, too. The problem with citing it as proof of Holder’s reasonableness is that the argument represents Comey and Goldsmith’s thinking, not Holder’s. According to the attorney general, the commission system is superb: That is why the administration has consigned the bombers of the U.S.S. Cole to a military trial.

Comey and Goldsmith nonetheless offer a surprisingly skewed account of the commissions. They assert that “the record of the military commission system that was established in November 2001” is “three convictions in eight years.” That’s wrong. “The military commission system that was established in November 2001” was authorized by a presidential directive, and it went out of business three years ago: In 2006, it was invalidated, on very dubious grounds, by the Supreme Court’s Hamdan decision. It was then replaced by a new, congressionally authorized commission system.

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Thus, Comey and Goldsmith exaggerate the “great uncertainty” surrounding the commissions’ legal validity — uncertainty they attribute to unspecified “changes in constitutional, international and military laws since [commissions] were last used, during World War II.” Maybe that was true of the original commissions ordered by President Bush, but there is no uncertainty about the commission system installed by the 2006 Military Commissions Act (MCA). Indeed, Congress enacted the MCA at the behest of the Supreme Court. When detainees’ volunteer lawyers later argued that the MCA-based commissions were invalid, that claim was rejected by the lower federal courts. That is why Salim Hamdan’s trial went forward in 2008, as did the trials of others, until the Obama administration suspended the commissions in January.

Nothing is certain in litigation, but it is likely that the Supreme Court will ultimately find that the congressionally authorized commissions are legally sound. Comey and Goldsmith rightly suggest that it may take a long time for a final conclusion to be reached, but so what? Interminable delay and uncertainty are staples of the civilian justice system, too. For example, the appeal in the embassy-bombings case was decided just this year — eight years after the trial and eleven years after the bombings. Just last week, the Second Circuit finally directed the Blind Sheikh’s attorney, Lynne Stewart, to report to jail, seven years after she was arrested on a terrorism charge, four years after she was convicted, and three years after she was sentenced to prison. And, because the appellate court’s decision requires that she be re-sentenced, additional years of litigation are now guaranteed.