This report from the Washington Post certainly makes it seem like Attorney General Eric Holder is leaving the door open to try Khalid Sheik Mohammed and the other alleged 9/11 co-conspirators by military commission:
"At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules," Holder said. "If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."
If the administration chooses to try the alleged 9/11 conspirators by military commission, the world will see a country that has been terrorized out of using its own system of laws by Osama bin Laden and al-Qaeda. The Arab Middle East will see shades of their own despotic regimes in the military commissions, and the events of 9/11 will be validated as an act of war committed by warriors rather than a crime committed by murderers.
Not only that, but shifting the venue to a military commission calls into question the possibility that these men will be tried at all -- the previous incarnation of the military commissions were declared unconstitutional, and it's not clear that these will pass muster. Changing to a military commission could put off justice indefinitely, which is what some Republicans, eager to avoid scrutiny over their support for torturing the defendants, may ultimately want. That was the entire rationale for trying KSM in civilian courts in the first place, because they happen to work better, something White House counterterrorism adviser John Brennan acknowledged earlier this week.
The fight against al-Qaeda is different from other conflicts in that it takes place on at least two fronts: one physical, and one abstract. The U.S., its military, and intelligence and law enforcement agencies are fighting the kinetic aspect of that conflict. But fundamentally the point of terrorism isn't to kill -- it's to terrorize. It's to intimidate a society into betraying its own ideals, to force Americans to live their lives under the terrorists influence, and to bankrupt the U.S. through endless military conflicts abroad. Terrorists don't win by killing; they win by the subsequent reaction to the theatrical manner in which they choose to kill. By transitioning the KSM trial out of the civilian justice system, the Obama administration will have handed al-Qaeda a significant victory.
The Post says that the president is going to "insert himself into the debate" here. I'm not sure if that means he intends to shore up Holder's original decision or provide political cover for a venue change. But it's clear the White House is calling the shots, and if they push to try the alleged 9/11 conspirators by military commission out of political expedience it will shatter any notion that Holder is an independent attorney general.
It shouldn't come as much of a surprise to the Democrats that they're losing this fight -- the message is completely muddled. The administration can't argue that the military commissions are a perfectly good venue for trying terrorists and then say the civilian courts are better without acknowledging the reality that the commissions are shaky, stilted toward the prosecution, and perceived internationally as illegitimate. Had they simply not revived them in the first place, they'd have a much clearer argument. As it stands, they're in a similar position to where the Bush administration was on torture, rhetorically clinging to an ideal they have no intention of upholding.
-- A. Serwer
