Congress deserves some of the blame for the failure to close Gitmo and the surrender on the 9/11 trials. But it doesn't bear all of it, and in my column today, I argue that the real problem was embracing the basic Bush post-2006 framework in the first place:
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.
At yesterday's House judiciary subcommittee meeting, it was immediately obvious that many of the Republicans present hadn't bothered to learn the basic facts about the military commissions, instead relying on culture-war counterterrorism arguments about the U.S. being at war and noncitizens not deserving due process. This exchange between Saltzburg and California Rep. Dan Lungdren over the fact that KSM couldn't plead guilty and be executed in a military commission was my favorite, but I cut it from the piece for reasons of length:
LUNGDREN: You can't plead guilty and then receive the death penalty?
SALTZBURG: Not in the commission.
LUNGDREN: Oh.
But who cares? We're at war, etc., etc.
