The Obama administration finally surrendered to political and military reality today. CBS News reports that Attorney General Eric Holder will announce today that the Department of Justice has given up the idea of trying Khalid Sheikh Mohammed in federal court for his role in masterminding the 9/11 attacks:
Attorney General Eric Holder today will announce that self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammad will be tried in a military commission, CBS News has learned. A source says the commission will be held at the Guantanamo Bay prison.
This isn’t the only news on the Guantanamo Bay front, either. The Supreme Court ruled just minutes earlier to deny requests from three detainees at Gitmo for their release:
The Supreme Court has turned away appeals from foreigners seeking their release after nine years of detention at Guantanamo Bay.
The court on Monday rejected three separate claims asking the justices to review rulings against the detainees by the federal appeals court in Washington.
In 2008, the high court ruled that the Guantanamo detainees have a constitutional right to ask a federal civilian judge to review their cases and suggested that a judge could order their release.
But in a series of cases since, the D.C. Circuit has limited the authority of federal district judges and made it harder for the detainees to challenge their continued confinement.
In both cases, it’s the result of theoretical thinking meeting some hard realities. The court’s interference in detention of foreign fighters during Congressionally authorized military and intelligence operations is unprecedented, and it had resulted in the curious and dangerous orders for release from district courts — which would have set terrorists free inside the US. The Supreme Court has decided to keep that thinking theoretical instead of overruling the decisions of the executive branch, which isn’t a bad precedent to set.
For Holder and Barack Obama, however, the decision to send KSM back to a military commission is an unmitigated political defeat. Obama stopped the commission’s trial of KSM immediately upon taking office even though KSM had indicated he’d plead guilty. Now that process has to start over, wasting more time and resources for nothing more than two years of grandstanding. In the end, Obama not only didn’t close Gitmo, he actually showed how necessary it is for dealing with terrorists captured abroad by our military and intelligence assets.
Update: On the Supreme Court decision, no vote was published because the court didn’t take the appeal on the earlier denial of release from the appellate court. Remember, though, that it takes 4 votes to grant certiorari at SCOTUS, which means that at least one of the liberal justices didn’t want to take the case.