Soon after Attorney General Eric Holder announced that alleged 9/11 mastermind Khalid Shaikh Mohammed and other conspirators would be put on civilian trial in New York, the right-wing partisans launched a fearmongering campaign attacking the decision and the Obama administration for appearing weak. Dick Cheney called the move “a huge mistake” that would result in “a show trial,” while one GOP congressman said decision “may” mean that Holder and Obama have a “disdain” for America.
After the right-wing flare-up, New York congressional Democrats and New York City Mayor Mike Bloomberg started to balk at the idea as well. Now, the Washington Post reports today that Obama’s advisers are caving to the pressure and “are nearing a recommendation” that KSM “be prosecuted in a military tribunal” instead of civilian court. However, the move does not appear to be based on any legal reasoning, but merely a political quid pro quo:
If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.
Indeed, various media reports have indicated that Sen. Lindsey Graham (R-SC) is seeking a deal with White House chief of staff Rahm Emanuel to try terror suspects in military commissions “[i]n exchange for some Republican support for closing the military prison at Guantánamo.” Emanuel, “particularly concerned with placating Lindsey Graham,” opposed Holder’s decision from the beginning. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people,” a source told The New Yorker.
The chief defense counsel at the Defense Department’s Office of Military Commissions criticized the recommendation’s political posturing:
Marine Col. Jeffrey Colwell, acting chief defense counsel at the Defense Department’s Office of Military Commissions, said it would be a “sad day for the rule of law” if Obama decides not to proceed with a federal trial. “I thought the decision where to put people on trial — whether federal court or military commissions — was based on what was right, not what is politically advantageous,” Colwell said.
The administration’s backtracking on civilian trials for terror suspects would come at an odd time given that just last week, the administration secured a guilty plea from terror suspect Najibullah Zazi in a federal civilian court for conspiring to detonate explosives in the U.S. In fact, a law enforcement official said “the threat of legal action against Zazi’s associates and family played a role in his decision to cooperate with the government.”
Beyond the right-wing fringe attacks, many conservatives had offered more support for Holder’s original decision to try KSM in civilian court. “[T]here is no question about the legitimacy of U.S. federal courts to incapacitate terrorists. Many of Holder’s critics appear to have forgotten that the Bush administration used civilian courts to put away dozens of terrorists,” said two former Bush officials. Former Secretary of State Colin Powell said just last week that he has “no problem” with trying KSM in civilian court.