Last Friday, U.S. Attorney General Eric Holder announced that the United States would try Kahlid Sheikh Mohammed and four other suspected terrorists in a federal court in New York City, not a military tribunal. The same announcement contained the news, subsequently under-reported, that the U.S. would try five other terror suspects in military tribunals, not civilian courts.
President Obama followed that bombshell with another: his admission on Wednesday that he won’t close the Guantanamo Bay prison by Jan. 22, as he had promised earlier this year.
The back-to-back announcements show that Obama continues to be torn between his campaign rhetoric and reality. If terrorism is a crime, why not try all suspects in civilian courts? The administration’s decision to try some terrorists in military tribunals is an acknowledgement that the tribunals are not inherently unjust, and that at least some acts of terror are acts of war.
If the tribunals are not unjust, as Holder tacitly admits, then why not try all terror suspects there? Strangely, Holder acknowledged on Wednesday that the 9/11 attacks were an act of war. His explanation for trying KSM and other terrorists in federal court was that the act of war committed on that day was also a federal crime. Said Holder:
“…the 9/11 attacks were both an act of war and a violation of our federal criminal law, and they could have been prosecuted in either federal courts or military commissions…At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is in federal court.”
Really? Holder cannot possibly be ignorant of the fact that the risks of failing to obtain justice are higher in a civilian criminal trial, where the government must expose sensitive secrets to public scrutiny if the defense requests them. And the defense certainly will. That fact alone can hamstring the prosecution. How in the world is the United States more likely to prevail in a criminal trial than a military one? It isn’t. Holder’s statement is an obvious rationalization.
But that is par for the course for this administration. Obama’s claims that the Guantanamo Bay prison must be closed quickly because holding suspects there is against our core national values was pure fiction. Obama railed against the prison during the campaign and pledged to close it within a year of taking office. That won’t happen, he acknowledges. But it’s not because, as he claims, the logistics are too difficult. It’s because his rhetoric was so obviously wrong that even Democrats in Congress refused to aid him in transferring terror suspects to civilian prisons inside the United States.
Had Democrats gone along with Obama’s plan, the prison could have been closed by the end of this year. But too many decided that campaign rhetoric is one thing, and having a terrorist in one’s own congressional district is another.
So Obama must break another promise and preside indefinitely over a military prison he claimed was a symbol of Bush’s betrayal of American values.
This is nothing new. In January, Obama signed an executive order banning the use of interrogation techniques not approved in the Army Field Manual. That very day, The New York Times reported that White House Counsel Gregg Craig “acknowledged concerns from intelligence officials that new restrictions on C.I.A. methods might be unwise and indicated that the White House might be open to allowing the use of methods other than the 19 techniques allowed for the military.”
Symbolically, the president was banning harsh techniques, but in reality he reserved the right to use them at any time.
In March, the Defense Department sent a memo throughout the Pentagon which stated, “this administration prefers to avoid using the term 'Long War' or 'Global War on Terror' [GWOT.] Please use 'Overseas Contingency Operation.' "
And yet on Wednesday Attorney General Holder said, “We are at war, and we will use every instrument of national power -- civilian, military, law enforcement, intelligence, diplomatic and others -- to win.”
Symbolically, Obama ended the “War on Terror” while reserving the right to fight it at any time – using the same methods President Bush used.
The trial of KSM and closing of the Guantanamo Bay prison are, to Obama, purely symbolic acts. Unfortunately, they will come with real costs. The United States seems fated to pay a heavy price for Obama’s obsession with style over substance.
Andrew Cline is editorial page editor of the New Hampshire Union Leader.