The Obama Administration Prepares to Relent on Military Tribunals
by Charles Lemos, Fri Mar 05, 2010 at 05:11:59 AM EST
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.