Justice Denied

After months of conservative fearmongering, Attorney General Erick Holder announced this week the administration's capitulation on trying five alleged 9/11 conspirators -- including the attacks' supposed architect, Khalid Sheikh Mohammed -- in military tribunals instead of the federal courts. An angry and frustrated Holder explained Monday that justice for the victims of the 9/11 attacks had been too long deferred.

"For the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer," he said.

Speaking at a House judiciary subcommittee meeting the next day, David Beamer, whose son died on United Flight 93, and who has been politically active on behalf of conservative causes, declined Holder's apology. "The families were already tired of waiting when the Obama team arrived on the scene," Beamer said. "The families had no say, no voice, no champions inside the Holder Justice Department. We were ignored, tolerated, overlooked, and misled. "

That testimony might have made major headlines if the Obama administration hadn't already given up on using the federal courts to try Khalid Sheik Mohammed and his cohorts. Yesterday's hearing on the plan to try the 9/11 conspirators by military commission would have been a doozy. Instead, the sparsely populated hearing didn't even rate a C-SPAN camera, and the force of Beamer's testimony was somewhat muted by the news that military commissions would go forward. But the hearing did exemplify how much of the case for using military commissions rather than federal trials relies on sentiment rather than facts, on politics rather than reason.

Federal courts have sent hundreds of terrorists to prison while military commissions have produced only six convictions and relatively lenient sentences. Several of those convicted are already free. Republicans constantly reiterate that terrorists are not "common criminals," but it's civilian federal prosecutors, not military lawyers, who are most frequently called upon to try the worst crimes and handle classified evidence.

In an attempt to rationalize the light sentences handed out to other military-commission defendants, Charles Stimson of the Heritage Foundation provided the day's most bizarre argument. "Military officers understand better than civilians the context of war and what fairness is," Stimson said, adding that if "we judge the outcome based on the length of sentence, we're looking at it the wrong way. It's whether it's fair. Uniformed officers will render fair decisions." So when Australian David Headley served six months for fighting alongside the Taliban, while American John Walker Lindh got a 20-year sentence for the same crime, the former was "fair" because the prosecutors wore uniforms. Or something.

Holder's announcement wasn't so much news as it was euthanasia. The Democratic majority in Congress first showed signs of wavering on the president's priorities in May of 2009 denying the administration's request for funding to close Gitmo in May 2009. It wasn't until December of last year, more than a year after Holder's original announcement of his intent to try the 9/11 conspirators in civilian court, that Congress banned the use of federal funds to transfer Gitmo detainees to the U.S. for trial.

What happened in the interim? As Time reported, by the time of the May 2009 vote, the internal battle between the administration's civil-liberties advocates and the president's political advisers was already over, and the former had lost when the president's internal poll numbers took a dive following his decision to release the torture memos. The attempted Christmas bombing by underwear bomber Umar Abdulmutallab in 2009 shifted the politics further against Holder's plan, and soon Rahm Emanuel, then the White House chief of staff was reportedly negotiating with Sen. Lindsey Graham to agree to military commissions for the 9/11 defendants in exchange for Republican votes to close Gitmo. Democrats in Congress, anxious about the shellacking they were about to receive in the 2010 midterms, were reluctant to allow the trials to take place in their states or districts. The administration was already trapped in a fetal position when the trial of Tanzanian embassy bomber Ahmed Ghailani ended in a conviction and a life sentence; rather than the acquittal Republicans had warned about, they let Republicans argue that the case proved federal courts were somehow inadequate. They ultimately appear to have agreed to acquiesce to the December transfer ban in order to pass repeal of "don't ask, don't tell," which in a sense was getting something for nothing since the 9/11 trial and closing Gitmo were dead the moment Republicans took the House majority, if not before.

But in the end, the 9/11 trials weren't doomed just by the cowardice of congressional Democrats or the cynicism of Republicans. They were doomed by the Obama administration's decision weeks before the May 2009 vote to embrace the Bush-era hybrid system of trying suspected terrorists. This introduced a political paradox that was impossible for the White House to reconcile -- it couldn't argue that federal courts were a superior system without undermining the military commissions they hoped to use when the evidence was weaker. There was no effective way to explain why, if the military commissions provided the same quality of justice as federal courts, the 9/11 trial should be moved to American soil.

Holder surrendered Monday, but Republicans had won the battle long ago. Theirs wasn't the only triumph. "The greatest victory KSM will have is to be treated as a warrior," George Washington University law professor Stephen Saltzburg told Congress yesterday. "The last thing that he and his conspirators want is to be treated like a common criminal."

Common Khalid Sheik Mohammed is not, but instead of facing trial as a murderer in federal courts, he now faces justice as a warrior. That is a disgrace.

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