As Andy Levy said on Twitter a little while ago, the most surprising part of the Washington Post scoop isn’t the decision to put Khalid Sheikh Mohammed into the military commission system. It’s that the White House didn’t wait until Friday night to leak it to the press:
President Obama’s advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.’s plan to try him in civilian court in New York City.
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.
Practically speaking, the White House has no other realistic options. New York City refused to hold the trial there, and no other federal jurisdiction would be likely to volunteer itself. In terms of jurisdiction, the only other court choice would be the district which includes Washington DC, which would mean a circus atmosphere in the nation’s capital for the better part of two years at the same time the federal government needs to keep operating. Note well that this option never did get floated out as a serious trial balloon. That leaves the military commissions — and an embarrassing retreat for the Obama administration.
The Post reports that the White House hopes to make headway on closing the detention center in Guantanamo Bay by reversing itself. That seems rather unlikely, especially since the fight over the criminal trials has made any movement of terrorists to the US even more politically fraught than before. The leaks from the White House emphasize the work they have been doing with Republican Senator (and Gitmo critic) Lindsey Graham, but Graham isn’t apparently biting, since they also acknowledge that Graham has limited his involvement to the Mohammed trial and issues surrounding Gitmo.
Politically, this creates a number of questions, chief among them the future of Attorney General Eric Holder. No one doubted that Barack Obama was committed to using federal courts to adjudicate the cases of Gitmo detainees; he campaigned against the military commission system in the Democratic primaries. As soon as Holder announced the KSM decision and political heat began to build, the White House placed all of the responsibility for the decision on Holder, claiming that the AG hadn’t consulted the White House at all.
By overruling Holder after letting him twist in the wind that way, they will have effectively emasculated him to the DoJ staff and humiliated him on the national stage. Obama may not want to get rid of Holder, but it’s hard to see how he can remain at Justice after such a public setback. Either he leaves with some modicum of dignity, or he stays while tacitly admitting that he’s screwed up the biggest issue he was asked to handle.
This may have some impact on the health-care debate as well. There have been suggestions that Obama would sacrifice his progressives and hoodwink the House into passing the Senate bill without seriously attempting to get the fixes House Democrats want made through reconciliation. After this retreat, Obama won’t dare cross the progressives on ObamaCare now — but they may be angry enough to demand a do-over to restore the public option. Just when Obama needed the Left to sit quietly so he could pass something on health care, he will enrage them on a key cause.
Of course, Obama wouldn’t have gotten into this fix if he had actually studied the logistics of the decision before making it. This is Obama’s failure, and he will live with the consequences, even if he finally comes to the correct conclusion.