Obama to detain KSM indefinitely without trial at all?

The White House has apparently leaked to the Washington Post in another Friday night news dump that they no longer intend to try Khalid Sheikh Mohammed, the lead 9/11 plotter and the man who murdered journalist Daniel Pearl, in federal court.  However, they also don’t intend to try KSM in a military commission, either, despite using that venue for others detained at Guantanamo Bay.  Instead, it looks like the Obama administration has responded to an avalanche of opposition from New York Democrats and the Right with the political equivalent of taking their ball and going home:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

Earlier this week, Attorney General Eric Holder said that a decision would be coming soon on KSM’s trial, which administration officials later downplayed as a habitual response to the media’s questions and not any kind of signal of an imminent announcement.  Nevertheless, Democratic Senator Chuck Schumer and newly-elected Democratic Governor Andrew Cuomo both insisted this week that New York should not be used as a venue for a federal trial.  Schumer had objected before to the trial, but Cuomo had not taken a public position on the issue until now.

No one thinks people in Pennsylvania or Virginia — the other options for a trial venue — will be any more welcoming to the notion.  After the elections over the past year in both states put Republicans back in power, pressing the matter could push both states even further towards the GOP.  Obama won both states on the way to his election in 2008, and he can’t afford to lose them in 2012, especially Pennsylvania.

That leaves just two options: military commissions or indefinite detention, both at Gitmo.  It’s telling that Obama apparently thinks that indefinite detention will be less problematic for his hard-Left base than a trial before a military commission where KSM would at least get to answer the charges.  Byron York also sniffs out the hypocrisy emanating from the Oval Office:

The only consequences of keeping KSM in indefinite detention would be — if one takes Obama’s 2008 campaign statements literally — to undermine the Constitution, destroy U.S. credibility around the world, and deliver a boost to terrorist recruitment.

In June 2008, candidate Obama exchanged criticisms with Sen. John McCain over the war on terrorism. “It is my firm belief that we can track terrorists, we can crack down on threats against the United States, but we can do so within the constraints of our Constitution,” Obama told ABC’s Jake Tapper. “Let’s take the example of Guantanamo. What we know is that, in previous terrorist attacks — for example, the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated.”

Obama continued:

And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world, and given a huge boost to terrorist recruitment in countries that say, “Look, this is how the United States treats Muslims.”

And now we have a situation in which Obama, after nearly two years as commander-in-chief, is reportedly planning to continue the indefinite detention of KSM — no charges, no trial.

The subtext on this is that shrugging off any sort of trial for KSM may be less of a capitulation and more of a punt — an attempt to wait out a couple more years and then stage the trial in New York after Obama’s re-election in 2012.  In that sense, it has similarities to how Democrats handled the FY2011 budget and the scheduled tax hikes at the end of this year.  Instead of making a decision and allowing for accountability as a consequence, they tried running out the clock, and instead got their clocks cleaned as a result.

Regardless of whether this decision to do nothing results from political pusillanimity or a temper tantrum over the rejection of their policy on KSM, the result is both hypocritical and useless.  We have military commissions for a reason, and had Obama not interfered in the process that had been repeatedly authorized by Congress, KSM’s case would have been adjudicated long ago.  Instead, it appears we are on track for wasting four more years instead of just the past two because we have a Chief Executive who can’t bear to have himself proven wrong.

Blowback