Ever since the Christmas Day EunuchBomber attack attempt, the Obama administration has spun in circles over whether to try captured terrorists in federal court or military commissions. They tried splitting the baby by assigning Khalid Sheikh Mohammed and the 9/11 plotters to federal court while sending others to the military commissions, but that turned into a PR fiasco when New Yorkers demanded that the trial take place somewhere else. The failed Times Square attack may have been the last straw, as the White House appears to have signaled a new focus on preparing for military commissions:
The appointment of a well-respected ex-Navy lawyer to oversee war-crime trials is being seen in military legal circles as a sign the Obama administration might reverse its decision to bring Khalid Shaikh Mohammed to New York for a civilian trial. …
A month after the administration signaled a reversal, the Pentagon, with significant White House input, named retired Navy Vice Adm. Bruce MacDonald as the war-crimes convening authority. In that post, the Navy’s former top lawyer is the official who brings criminal charges, selects jury pools, approves defense- lawyer expenses and makes other rulings.
Charles Stimson, the Pentagon’s director of detainee affairs in the Bush administration and who still monitors terror prosecutions as a legal analyst at the Heritage Foundation, noted the significance of the MacDonald appointment.
“Picking Bruce does not prove that KSM is going to commission, but what it does show is that Bruce would not have taken the leap if he did not think he was going to get some substantive cases, because he’s a worker guy. He likes real work,” said Mr. Stimson. “And the White House and [Defense Department General Counsel] Jeh Johnson would not have asked Bruce to come over.”
Added Mr. Stimson, a former prosecutor and currently a Navy reserve judge advocate: “They are essentially bringing ‘Michael Jordan’ in to head up commissions. And what that tells you is that they either want Michael Jordan there to handle the relatively uninteresting cases, or they’re bringing him in because they want to be prepared if and when they have to relent and send KSM back there for lack of a better political option. So they want to have the A Team in place.”
One doesn’t acquire a Michael Jordan just to play the Washington Generals, in other words. The low-key nature of the appointment may also be a signal. The Obama administration has taken a lot of heat over its move away from federal courts from the Left, and in the midst of the Times Square bomber issue, they hardly need another fight over competency and direction.
If the latest attack provided the impetus away from federal courts, that will have no small amount of irony. Faisal Shahzad must be tried in federal court for the crime he committed, thanks to his American citizenship granted him by naturalization. Because Shahzad was arrested after he committed an act of terrorism, federal courts are the entirely appropriate venue for adjudicating his case. The impact the case has on this decision is entirely related to optics; right now, the counterterrorism efforts of the US have started looking a little threadbare, which won’t give anyone much confidence in their ability to shoehorn foreign terrorists captured by military and intelligence assets abroad through the criminal court system. Hence, the appointment of Vice Admiral MacDonald.
The White House may have another out as well. The trial of Ahmed Khalfan Ghailani has been delayed while the courts deliberate a motion to dismiss his case on Sixth Amendment grounds, charging that the US held him too long to give him a constitutionally-mandated speedy trial. If the courts rule in Ghailani’s favor, the Obama administration will move his case back to the military commissions, as well as others like Ghailani’s. They can blame that on the Bush administration, and they will, but the Bush administration never intended Ghailani to be tried in federal court. They intended — as did Congress — for captured terrorists to be processed through military commissions, which is why Congress passed three different versions of regulations for that venue.
Don’t expect to see KSM in a courtroom, in other words. Right now, the Obama administration is looking for any excuse to reverse itself, and hopes to let the courts “force” them back into the military commissions that should have been used from the beginning.