Attorney General Eric Holder announced on Monday that 9⁄11 mastermind Kahlid Sheikh Mohammed (KSM) and four other conspirators in that attack would be tried by a military tribunal at the Guantanamo Bay detention center rather than by a US federal court. This sudden turnabout by the Obama administration represents yet another admission that the harsh criticisms it once directed at the Bush administration for its detainee policies were unfounded and based on an uniformed understanding of the substantial threats facing America today.
In a public statement, the Justice Department explained its dismissal of federal charges in the case against the 9⁄11 terrorists:
Both the public generally, and the victims of the terrorism attacks of Sept. 11, 2011, and their families specifically, have a strong interest in seeing the defendants prosecuted in some forum. Because a timely prosecution in federal court does not appear feasible, the Attorney General intends to refer this matter to the Department of Defense to proceed in military commissions.
This latest flip-flop by the Obama administration highlights the chasm between what presidential candidate Obama said about the detainee policies of George W. Bush in 2008, and the actions Obama has been forced to take when confronted with the same realities his predecessor faced. On every significant issue dealing with detainees and where they will be housed, the President has been forced by massive political opposition – at times, from his own party – to reverse himself and follow the same policies and procedures laid down by President Bush.
Former Vice President Cheney predicted as much when he said in 2009, “I think the president will find, upon reflection, that to bring the worst of the worst terrorists inside the United States would be cause for great danger and regret in the years to come.”
In this case, it was Congress that put its foot down and prevented Eric Holder from going forward with his disastrous plan to bring Kahlid Sheikh Mohammed and the other conspirators to New York City and try them in the criminal justice system. At Monday’s press conference announcing his decision, Holder alluded to a rider attached to last year’s Defense Authorization Act that prevented any monies from being spent for a federal trial on US soil as the cause for his “reluctant” decision.
“Those unwise and unwarranted restrictions undermine our counterterrorism efforts and could undermine our national security,” said Holder. The Attorney General failed to elaborate on how keeping dangerous terrorists off American soil could “undermine” our national security. He also did not specifically address how a trial for Mohammed by military tribunal could adversely affect our counterterrorism efforts.
Holder was careful not to mention past administration reversals, including the president’s efforts to close Guantanamo, expand detainee rights, do away with “indefinite detention,” and stop military trials altogether. In each and every case, Congress – both Democrats and Republicans – have stymied this massively flawed ideology regarding the treatment and disposition of detainees.
The White House had little to say about Holder’s announcement. Press Secretary Jay Carney told reporters, ”I think that the president’s primary concern is that the perpetrators — the accused perpetrators – of that terrible attack on the American people be brought to justice as swiftly as possible and as fairly as possible.” He added that “congressional opposition has created obstacles that’s (sic) been very hard to overcome.”
In the case of bringing KSM and his co-defendants to New York City for a civilian trial, every major Democratic politician in the state opposed the idea. Despite that, and despite the overwhelming opposition of Congress, Holder said on Monday, “Let me be clear: I stand by that decision today.”
That’s more than can be said for the president. His pious rhetoric during the 2008 presidential campaign lambasted President Bush, accusing him of making America “less safe” try terrorists in military tribunals – the traditional venue for captured enemy combatants during wartime. Calling Guantanamo a “legal black hole,” Obama then remarked that Bush’s policies “set back America’s ability to lead the world against the threat of terrorism, and undermined our most basic values.”
Those sentiments ring hollow in light of what President Obama has actually done in his two years and two months in office. His attempt to close Guantanamo – announced with much hype and fanfare less than a month after he assumed office – was immediately stymied because no country would accept Guantanamo prisoners. His decision to eliminate indefinite detention was also effectively abandoned, after the Justice Department realized that several dozen of the Guantanamo detainees were far too dangerous to release. Hundreds have already been released, and up to 20% have returned to their former jihadist activities.
The administration’s schemes to relocate the Guantanamo prisoners to Thomson, Illinois were never even considered by state officials, while moving the Mohammed trial to Upstate New York or Virginia proved to be just as illusory as trying to hold the trial in Midtown Manhattan. When Senate Intelligence Committee chairman Diane Feinstein wrote a letter to President Obama informing him of the increased risk of a terrorist attack if Mohammed’s trial were held on US soil, Holder relented. However, he never gave up hope that Mohammed would be tried by Justice Department prosecutors somewhere – perhaps even at Guantanamo.
But this final about-face by the administration is the biggest blow to their entire misguided framework for fighting terrorism. The plan has proved impractical due to sustained political opposition to the prospect of housing high profile terrorists like KSM on US soil, and convicting them through trials that would likely last a year or more and cost millions of dollars.
Despite the administration’s detainee policy being in total disarray, Holder is still apparently determined to proceed with civilian trials of terrorists. He indicated on Monday that he would work to repeal the congressional restrictions on the trials, believing that the executive branch had sole authority to decide the matter.
“Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications,” he said.
Congress may be deficient in information about “prosecution judgments,” but its members clearly have superior knowledge about what the American people want when it comes to putting the perpetrators of the 9⁄11 terrorist attacks on trial.