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Advisers to Recommend Trying KSM in Military Commissions

photo: KCIvey via Flickr

The Washington Post seems pretty convinced that President Obama will accept the recommendation of top national security advisers and back down on a civilian trial for Khalid Sheikh Mohammed.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

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.

The administration officials, who spoke on the condition of anonymity to discuss internal deliberations, said the president’s legal advisers are finalizing their review of the cases of Mohammed and four alleged co-conspirators. Asked about the process, White House press secretary Robert Gibbs said that “no decisions have been made.”

You can compromise on funding this or that domestic policy. But here we have a compromise on the rule of law, an ethical impossibility. The Cheney family talked enough trash and questioned enough patriotism to actually get the President to potentially step away from the criminal justice system? We’re running trials based on polls now?

Of course, like most things, Obama comes to this debate having already compromised. His Justice Department selected trial venues – or the lack thereof – based on the admissible evidence available on the suspect. The A tier (with clearly enough evidence to convict) got a criminal trial, the B tier (with less evidence) a military commission, the C tier (not enough evidence) got to stay at Guantanamo or Guantanamo North or wherever indefinitely. It’s hard to talk about principles and justice when you’ve already sold it out.

Nevertheless, giving up on the KSM trial would represent a triumph of politics over principle. Lindsey Graham has been reportedly negotiating with Rahm Emanuel over some “Grand Bargain” where KSM gets a military commission in exchange for funding to close Gitmo. It will be amusing to watch Graham unable to sway a single Republican once this exchange is made, and then have Ben Nelson or Joe Lieberman or Jim Webb be the stumbling block for the plan. And needless to say, this switch won’t end the endless cycle of fear propagated by the slime merchants on the right. A President committed to closing Gitmo and using Article III courts could have stuck the funding in a must-pass bill, ignored the critics and refused to play this game.

Spencer notes that Eric Holder has actually ramped UP his defense of the KSM trial in recent weeks, and convincingly so:

“If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder told The New Yorker’s Jane Mayer, adding that he was “distressed” that people “who know better” were demagogically and speciously claiming civilian courts are incapable of trying terrorists. As the fight over the KSM trial — no longer hypothetical after New York rejected holding it at the Foley Square courthouse — intensified, so did Holder, putting up webpages touting the courts’ superior record of convicting terrorists. Sensing the heat from conservatives, Obama’s other senior aides followed suit. John Brennan, the White House counterterrorism chief, noted in USA Today that “there have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system,” a point Vice President Biden amplified on the Sunday chat shows. Defense Secretary Robert Gates backed Holder in a letter to Congress last week, and his defense budget request put the money for closing Guantanamo Bay and moving terrorists to the U.S. — the only substantive congressional hurdle for any trials, military or civilian — in the Afghanistan war funding request, the most politically unstoppable budget line the government has.

All of these maneuvers – for nothing?

[Ed. Note: Spencer has his own special take:

What Obama will actually gain by siding with Emanuel and Graham over his national-security team and his law-enforcement team is, to say the least, less than clear. . . .

The pattern couldn’t be clearer. Every time Obama compromises on a matter of national-security and civil-liberties principle, his GOP opponents raise the pressure to get him to bend further. His compromises earn him no good will. He is being, simply, punked.

Attackerman has more.]

CommunityThe Bullpen

Advisers To Recommend Trying KSM In Military Commissions

The Washington Post seems pretty convinced that President Obama will accept the recommendation of top national security advisers and back down on a civilian trial for Khalid Sheikh Mohammed.

The president’s advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

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.

The administration officials, who spoke on the condition of anonymity to discuss internal deliberations, said the president’s legal advisers are finalizing their review of the cases of Mohammed and four alleged co-conspirators. Asked about the process, White House press secretary Robert Gibbs said that “no decisions have been made.”

You can compromise on funding this or that domestic policy. But here we have a compromise on the rule of law, an ethical impossibility. The Cheney family talked enough trash and questioned enough patriotism to actually get the President to potentially step away from the criminal justice system? We’re running trials based on polls now?

Of course, like most things, Obama comes to this debate having already compromised. His Justice Department selected trial venues – or the lack thereof – based on the admissible evidence available on the suspect. The A tier (with clearly enough evidence to convict) got a criminal trial, the B tier (with less evidence) a military commission, the C tier (not enough evidence) got to stay at Guantanamo or Guantanamo North or wherever indefinitely. It’s hard to talk about principles and justice when you’ve already sold it out.

Nevertheless, giving up on the KSM trial would represent a triumph of politics over principle. Lindsey Graham has been reportedly negotiating with Rahm Emanuel over some “Grand Bargain” where KSM gets a military commission in exchange for funding to close Gitmo. It will be amusing to watch Graham unable to sway a single Republican once this exchange is made, and then have Ben Nelson or Joe Lieberman or Jim Webb be the stumbling block for the plan. And needless to say, this switch won’t end the endless cycle of fear propagated by the slime merchants on the right. A President committed to closing Gitmo and using Article III courts could have stuck the funding in a must-pass bill, ignored the critics and refused to play this game.

Spencer notes that Eric Holder has actually ramped UP his defense of the KSM trial in recent weeks, and convincingly so:

“If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder told The New Yorker’s Jane Mayer, adding that he was “distressed” that people “who know better” were demagogically and speciously claiming civilian courts are incapable of trying terrorists. As the fight over the KSM trial — no longer hypothetical after New York rejected holding it at the Foley Square courthouse — intensified, so did Holder, putting up webpages touting the courts’ superior record of convicting terrorists. Sensing the heat from conservatives, Obama’s other senior aides followed suit. John Brennan, the White House counterterrorism chief, noted in USA Today that “there have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system,” a point Vice President Biden amplified on the Sunday chat shows. Defense Secretary Robert Gates backed Holder in a letter to Congress last week, and his defense budget request put the money for closing Guantanamo Bay and moving terrorists to the U.S. — the only substantive congressional hurdle for any trials, military or civilian — in the Afghanistan war funding request, the most politically unstoppable budget line the government has.

All of these maneuvers – for nothing?

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David Dayen

David Dayen