Anonymously sourced trial balloons are one thing, but White House Spokesman Robert Gibbs put some distractingly prominent quadriceps on the notion that Khalid Sheikh Mohammed and the other alleged 9/11 conspirators will be not be tried in civilian court this morning on MSNBC:
"Khalid Sheikh Mohammed, in one form or another, will have to answer for his crimes. And I believe he will be guilty and will have to pay the punishment for those crimes," Gibbs said, adding that he believes that punishment will be execution.
This would be a useless concession--the money for closing Guantanamo Bay is in the Afghan War funding bill; it will limit the administration's future options in fighting terrorism because it will encourage Republicans to insist that all Muslims accused of terrorism be tried in military commissions, and it will delegitimize the proceedings in the eyes of communities whom the U.S. most needs to persuade that it stands for the rule of law.
That's if a military commissions trial is held at all -- as I've reported previously, the ACLU has every intention of challenging the constitutionality of the commissions, which would incapacitate them indefinitely, even if they are ultimately successfully defended in court. Worse, this move would cement the idea that American institutions are incapable of dealing with terrorism. The absurdity of this, of course, is that it is military commissions that in the past have proven an inadequate substitute for civilian courts, not the other way around. Last week the Justice Department released a list of 403 terrorism-related convictions since 9/11. That would make the civilian courts vs. military commissions score 403 to 3.
This would be a bad decision on the merits, but it would also be a bad political decision. Does the administration believe that Republicans will cease their incessant criticisms of the Obama administration despite its continuity of Bush-era national-security policies once they've made this concession? Because they won't -- for that to be the case, this would actually have to be an argument about policy rather than political gamesmanship. No matter what decisions the administration makes on national security policy, the Republicans will move to the right and accuse Obama of not being serious about fighting terrorism. Ceding the argument offers no advantage for the administration one way or the other, and it makes it less likely that KSM will actually "be brought to justice," however defined.
-- A. Serwer
