The Obama Administration Prepares to Relent on Military Tribunals

According to the Washington Post, a team of advisors to the President is close to recommending a reversal of the decision made late last year by Attorney General Eric Holder to try Khalid Sheik Mohammed, the self-confessed mastermind of the September 11th 2001 attacks, in a civilian court. The officials within the Administration now will propose that Khalid Sheik Mohammed and four other co-conspirators be tried in a secret military tribunal. 

While the review is not likely to be finished this week, the sources cited in the Post's story note that the President wants to make a decision before he embarks on a trip to Indonesia and Australia on March 18th.

If true the decision is another hard to believe reversal by the Obama Administration and one which civil libertarians simply cannot endorse. It is a deep blow to the rule of law and a betrayal of the principles upon which this country was founded.

From the Post's story:

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 Guantánamo 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 Guantánamo.

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.

In response, Anthony D. Romero of the American Civil Liberties Union lamented that "if this stunning reversal comes to pass, President Obama will deal a death blow to his own Justice Department, not to mention American values." He added that "even with recent improvements, the military commissions system is incapable of handling complicated terrorism cases and achieving reliable results. President Obama must not cave in to political pressure and fear-mongering. He should hold firm and keep these prosecutions in federal court, where they belong."

Those are valid concerns but the Administration should also consider the political consequences of alienating perhaps irrevocably those for whom civil liberties are non-negotiable as well as the certainty that Cheney-led right will use the reversal to further paint the President as a dangerous neophyte who is weak, indecisive and who lacks the proper judgment to be Commander-in-Chief. 

The President needs to understand that this not about Khalid Sheik Mohammed but about us and who we are as a nation. How we treat our enemies, especially one who has done us such grave injuries, is ultimately reflective of our values and our commitment to the rule of law no matter how heinous the crime. 

On a personal note I'll add that Khalid Sheik Mohammed is also the self-confessed murderer of Daniel Pearl, the Wall Street Journal reported killed in Karachi in January of 2002 and one of my closest friends from college. I have long wanted to see Danny's murderer brought to justice but at no time I have been prepared to sacrifice the rights of Khalid Sheik Mohammed that Western jurisprudence affords him.

It is precisely by demonstrating the openness and fairness of our legal system available to even our most intractable foe by which we can lay claim to any moral superiority that we presume to possess over adversaries who have shown nothing but contempt for human life. Danny was beheaded, his body butchered like a lamb in ten parts and then disposed of unceremoniously as if carrion in a Karachi slum. I believe it of crucial importance to be true to the ideals of a civilization that produced a man like Daniel Pearl. In abandoning who we are we become no better than those who commit such unspeakable atrocities out of sheer hate and unfathomable ignorance. Those of us who knew and loved Danny have long lamented that in killing in Daniel Pearl, Al Qaeda killed not just a dispassionate chronicler of a conflict but a passionate bridge between two worlds too often at odds. 

Last November writing in the Los Angeles Times, Andrew Napolitano wrote about the underlying Constitutional issues in the use of military tribunals.

The last time the government used a military tribunal in this country to try foreigners who violated the rules of war involved Nazi saboteurs during World War II. They came ashore in Amagansett, N.Y., and Ponte Vedra Beach, Fla., and donned civilian clothes, with plans to blow up strategic U.S. targets. They were tried before a military tribunal, and President Franklin D. Roosevelt based his order to do so on the existence of a formal congressional declaration of war against Germany.

In Ex Parte Quirin, the Supreme Court case that eventually upheld the military trial of these Germans -- after they had been tried and after six of the eight defendants had been executed -- the court declared that a formal declaration of war is the legal prerequisite to the government's use of the tools of war. The federal government adhered to this principle of law from World War II until Bush's understanding of the Constitution animated government policy.

The recent decision to try some of the Guantánamo detainees in federal District Court and some in military courts in Cuba is without a legal or constitutional bright line. All those still detained since 9/11 should be tried in federal courts because without a declaration of war, the Constitution demands no less.

Notwithstanding my deep antipathy towards Khalid Sheik Mohammed, we must remember that he has civil rights which must be respected and defended. In this, we must be unyielding for any erosion of such rights diminishes our moral standing, puts our own rights at risk and sets us on a road to perdition.

Tags: Khalid Sheik Mohammed, Guantánamo, International Terrorism, civil liberties (all tags)

Comments

19 Comments

trials & politics

I think Obama fully realizes what you point out:

The President needs to understand that this not about Khalid Sheik Mohammed but about us and who we are as a nation. How we treat our enemies, especially one who has done us such grave injuries, is ultimately reflective of our values and our commitment to the rule of law no matter how heinous the crime.

That's why he made the decision he did initially. However, here again, the political outweighs the principle. Maybe not at first, but arguably now. The process seems to be that political realists, like Emanuel & Axlerod, decide when and on what issues that Obama needs to fold, and he does so thereafter.

The thing is, its tough to know, as a progressive, when you might actually want to stand up for something that Obama says is a matter of principle. Because we know, he's likely to turn a 180, if the political equation happens to tip the scales in his polls or his advisors minds. So why bother with his back, if he's likely to turn on the issue anyway.

Now, the counter that Obama has said multiple times, is that he needs to be pushed, and that there needs to be some noise, to make the principle not have a political cost. But this just means we have a weather vane prognosis, one that's therefore never close to being held accountable by his own supporters, much less representative of a real progressive movement.

by Jerome Armstrong 2010-03-05 09:47AM | 1 recs
Principles??

Somewhere between the rhetoric of the campaign trail, which sounds like empty words everyday, and the political world of Beltway wisdom, the administration has lost it's principles and essential emasculated itself to the whims and fancies of the Republicans. Does this surprise me? I guess not. Obama always wanted bipartisanship over and above everything else, so essentially he has papered over the differences that contrast the two parties. Right now we have the Republican party in the minority and the Republican-lite party in government and White House.

by tarheel74 2010-03-05 10:06AM | 0 recs
long term damage

maybe not to Obama, but to the rest of us.  there's nothing quite so pitiful as a scared american.

by the mollusk 2010-03-05 10:20AM | 0 recs
RE: The Obama Administration Prepares to Relent on Military Tribunals

Greenwald:

Obama supporters spent months vigorously defending the decision to try KSM in a civilian court on the ground that Obama was upholding the Constitution and defending the rule of law.  

What are they going to say if he reverses himself and uses military commissions instead:  

that he's shredding the Constitution and trampling on the rule of law?  

If they have any intellectual integrity at all, that's what they will have to say. 

by jeopardy 2010-03-05 10:57AM | 0 recs
RE: The Obama Administration Prepares to Relent on Military Tribunals

WHO are these Obama supporters who spent months vigorously defending the decision? I didn't see any of them in the TV, or read about any of them in the news. What id did see was a lot of opposition though and general silence from congressional democrats.

by vecky 2010-03-05 02:36PM | 0 recs
They're just a straw man

That's just a naked attempt at a wedge issue to separate Obama supporters from Obama himself.

I, personally, vociferously disagree with any course of action that strays from trying domestic terrorism as a law enforcement issue. I know historians are going to be looking back on Obama with favor, but I also hope there aren't these little black mark footnotes.

by NoFortunateSon 2010-03-05 03:13PM | 0 recs
RE: They're just a straw man

I think the question should be asked about why other countries, which run the gamut of ideologies and economies - Spain, Israel, England, India, Indonesia can try Al-Qaeda and AQ affiliated terrorists with apparent ease and lack of controversy, but the US can't.

by vecky 2010-03-05 03:55PM | 0 recs
Oh so many reasons

I was hoping Obama would transition us away from seeing terrorism defined as a military issue to one defined as a law enforcement issue.

One is the rampant xenophobia in our society. Timothy McVeigh didn't get a military tribunal. But then again, Timothy McVeigh wasn't brown. Timothy McVeigh wasn't a Muslim. What if he were? Look at how Obama is treated compared to other Presidents, just because of the color of his skin and his name.

The other is eleutherophobia. Sure, whatever modern incarnation of the John Birch society we're on uses freedom as their rallying cry. I guess they think they're bravehart. But conservatism at almost every turn has sought to limit the freedoms of Americans directly or indirectly. And if we get in our way back machine and return to the Great Backlash against the Great Society, we find the rampant fear of defendant's being given their consitutional rights. Child molesters, OJ Simpson, and John Hinckley, Jr. haunt these peoples' dreams.

As an anecdote almost worthy of a diary, when I first encountered online political discussion just before the 2000 election, I met a brilliant freeper who went by the screen name of "Atomic Vomit". What an awful name. The name is in reference to the Ogden Utah Hi-Fi murders. In 1974, two african american airmen entered a store in white Ogden Utah and murdered several people after first forcing them to drink liquid drano. The term "atomic vomit" comes from the testimony, which the defendants either hoped to see or believed they would see. Of course, the airmen were tried, convicted, and executed, even though the NAACP objected.

So with the trial of these suspects, it is all risk and no reward for Obama. If he does the right thing, well, we saw how the country spasmed when some idiot tried to set his underwear on fire on a commercial airplane. Could you imagine the fallout of another attack.

by NoFortunateSon 2010-03-05 04:36PM | 0 recs
RE: Oh so many reasons

I always thought it was a "joint issue" - both civilian and military.

Still, can anyone imagine stuff like the trail of Ajmal Kasab happening in the US? We'd be all tied up in knots over peripheral things like "he's not a citizen" "enemy combatant" "not in my back yard" etc etc. I can't understand the rationale behind a military trial for KSM, other than the political.

by vecky 2010-03-05 05:13PM | 0 recs
RE: They're just a straw man

Wait, first you said those people were a strawman, and then you seemed to identify yourself as one of these people.  I must be misunderstanding.  Don't you feel, as I do, that Obama was doing the right thing for the Constitution and the rule of law by seeking to try KSM in a civilian court?

by Steve M 2010-03-05 06:05PM | 0 recs
Don't you see the logical fallacy here?

Of course Obama was doing the right thing in trying these suspects in civlian court. As I clearly state above:

I was hoping Obama would transition us away from seeing terrorism defined as a military issue to one defined as a law enforcement issue.

However, look at the crafty wording of a wedge worthy of Bill O'Relley himself:

Obama supporters spent months vigorously defending the decision to try KSM in a civilian court on the ground that Obama was upholding the Constitution and defending the rule of law.  

What are they going to say if he reverses himself and uses military commissions instead:  

that he's shredding the Constitution and trampling on the rule of law?  

The problem with that argument is as follows:

1. Can there be other reasons why some people, such as myself, vigorously defended the decision to try KSM in civillian court besides the Consittution? Yes.

2. Does trying these suspects in military tribunal shred the Constitution? Absolutely not.

Therefore, Obama is neither a U.S. Constitution upholder nor a U.S. Constitution shredder. Trying these suspects in Civilian court has many other benefits to society that have nothing to do (directly) with the U.S. Consititution.

So if Obama makes the bad decision here, these straw men supporting Obama shredding the Constitution... vanish in the wind.

by NoFortunateSon 2010-03-05 06:44PM | 0 recs
RE: Don't you see the logical fallacy here?

Those are fair points.

It paints those of us who favored a civilian trial with a broad brush.

Only SOME of us view it as a Constitutional issue, apparently.

by jeopardy 2010-03-05 07:59PM | 0 recs
RE: Don't you see the logical fallacy here?

Greenwald's larger point was that there was nothing commendable about trying KSM in civilian court as part of a larger strategy where the administration picks and chooses its forum based on where it feels it has the best chance of getting a conviction in a given case.

by Steve M 2010-03-05 08:39PM | 0 recs
RE: Don't you see the logical fallacy here?

Greenwald ending up shooting himself in the foot.

by vecky 2010-03-05 09:35PM | 0 recs
All risk and no reward, if you ask me

Looking at this from a purely political point of view, what's the reward for trying these guys in Civilian Court?

Maybe being judged by history as doing the right thing? But there is so much risk. There's not a whole lot of people that care that these guys get civilian trials.

As we saw this past December, some guy tries to set his underpants on fire on an airplane, and the entire country spasms in terror. What's Obama's defense if there's another terrorist attack? I did the right thing?

Another terrorist attack will be politically devastating for democrats. I fear that even by doing the right thing, Obama could certainly help that political blow land harder.

by NoFortunateSon 2010-03-05 11:35PM | 1 recs
Let me ask you something...

WHY is there "so much risk"?

Civilian trials for terrorists have been going on for a long, long time.

GWB did it just a few years ago. The guys behind the first WTC bombing during the Clinton Admin. are sitting in jail. Reagan made passionate defenses of trying terrorists in civilian court, etc.

So why, all of a sudden, is this such a huge political problem?

by jeopardy 2010-03-06 10:27AM | 0 recs
RE: Let me ask you something...

Well, as NFS said : http://mydd.com/2010/3/5/the-obama-ami#comment-1248033

Republicans and Conservatives have choosen to make it a political issue. You would think the trial of a terrorist who is one of those responsible for 9/11 would be above politics, but not with this crowd.

by vecky 2010-03-06 02:13PM | 0 recs
I wish I had a good anwer

So why, all of a sudden, is this such a huge political problem?

I only have a bad answer: Because the President is a Democrat.

I feel the societal meme is so strong that Democrats are soft on terror, I really can't envision anyone in the Oval Office strong enough to overcome it.

My evidence comes from this past winter:

All we had is some idiot trying to set his pants on fire on an airplane. Here we are, 8 years after 9/11, and I don't believe the integrity of the airliner was ever an issue. I think he would have blown himself up, maybe injured or killed a few more, and maybe blown a hole in the plane.

But the Republicans were able to gain so much traction on this non-issue, simply because Americans are so easily frightened, and they've been conditioned for 50 years to believe that only the Republicans can keep us safe.

I think this the biggest sleeper problem in America. If you have another attack, people are going to turn to the GOP.

by NoFortunateSon 2010-03-06 02:27PM | 0 recs
RE: The Obama Administration Prepares to Relent on Military Tribunals

well, I was one (I had lots of arguments about it on message boards).

by jeopardy 2010-03-05 07:56PM | 0 recs

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