Several months ago, Eric Holder declared that he would try Khalid Sheikh Mohammed, Ramzi binal Shibh, and the rest of the 9/11 plotters held in Guantanamo Bay in federal court, consequences be damned. Just prior to that decision, Nidal Hasan murdered fourteen people at Fort Hood after a long connection to al-Qaeda recruiter Anwar al-Awlaki, and almost immediately afterward, the EunuchBomber barely missed his chance of killing hundreds of people in the air and on the ground in the Christmas Day flight — after a shorter connection to AQ recruiter Awlaki. In the wake of the two terrorist attacks — and before a third attempt in Times Square that would have massacred hundreds as well — public outrage forced the White House to back down and reconsider the option of military commissions.
Or so we thought. According to the Associated Press this weekend, the Obama administration has done nothing at all to prepare for either a trial or a military commission for the 9/11 plotters since publicly distancing itself from Holder’s original decision:
But Khalid Sheikh Mohammed, the professed mastermind of the attacks, and four alleged accomplices are still sequestered at Guantanamo without charges. The Obama administration, after months of review, hasn’t made a decision on whether to seek a military or civilian trial.
It’s a delay that has angered relatives of Sept. 11 victims. It also has created an unusual situation: Previous war-crimes proceedings, in which Mohammed boasted of his role in the attacks and said he wanted to plead guilty, have essentially been erased. No U.S. officials will say what the plans are for the five men who were transferred in 2006 to Guantanamo from secret CIA custody.
“There’s no case, there’s no judge, there’s nothing,” said Navy Lt. Cmdr. Richard Federico, a military lawyer appointed to defend alleged plotter Ramzi bin al Shibh. “They are back into the black hole.”
So what’s the hold-up? The White House sees the midterms coming, and a Kobayashi Maru scenario unfolding:
Lawyers for the Sept. 11 defendants and other observers doubt an announcement will be made before November elections, because moving them to the United States and keeping them in Guantanamo for a military trial are both politically unpopular choices.
“Why would you want to pay this political price in the three months before this election which you are expecting to do badly in?” said Benjamin Wittes, a senior fellow and terrorism specialist at the Brookings Institution.
Quite the sticky wicket, indeed. If Obama chooses military commissions, it means an almost certain halt to his promise to close Gitmo, at least for a long while. Of course, other defendants have already been chosen for military commissions, which means that a decision to try the 9/11 plotters in that venue would have limited impact on that decision anyway.
If the administration is stalling out of political considerations, it’s because they’re leaning back towards federal court. That kind of announcement would create outrage among a large majority of Americans who want military commissions for the detainees. Obama had hoped that the passage of ObamaCare would at least temper the fervor of conservative grassroots outrage and momentum, which has yet failed to occur. Announcing yet again that KSM and his cabal will get a federal courtroom for their platform would pour gasoline on an already-raging fire.
And none of this would have been necessary at all had Obama simply allowed the KSM military commission to proceed as scheduled. KSM wanted to plead guilty, Congress had repeatedly authorized that venue to adjudicate the case, and the White House would have been beyond this question more than a year ago. Instead, they’ve managed to drag it out in the worst possible way, and now have to calculate the potential damage all over again for fumbling the issue.