Attorney General Eric Holder grew visibly disappointed and even angry during his press conference announcing that Khalid Sheik Mohammed and the other alleged 9/11 conspirators would be tried by military commission at Guantanamo Bay rather than in federal court. Blaming Congress' recent transfer and funding restrictions for his decision, Holder said that "for the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer."
While Holder defended civilian courts as an "unparalleled instrument for bringing terrorists to justice," unacknowledged in his prepared remarks, or generally by those opposed to federal trials, is that this decision could delay justice for a very long time. The original problem with the 9/11 case was that it's not clear that it's legal for defendants to plead guilty in capital cases in military commissions. A military trial for KSM and his cohorts would also be subject to legal challenge, and in fact, there are two cases in the federal courts that could, once again, unravel the system altogether.
Placing the blame on Congress doesn't wash entirely either, not since the administration implied that it could wage war in defiance of Congress, and certainly not given the two years of majorities in both houses of Congress and no such spending restrictions. There's something poetic about the administration announcing that it was folding on the 9/11 trials the same day as Obama announced his re-election campaign, as if to remind a small segment of his supporters how little change from the last administration there's actually been. But there's also a practical result -- the GOP's 2012 hopefuls have been denied an easy and popular avenue of attack. In a few short months, some Obama supporters may be arguing that this incredible reversal shows the administration is tough on terrorists.
Don't believe it. The military commissions are a weak, flawed system, and Holder was right the first time. The military commission's death-penalty problem may be solved by new detention legislation, as Rep. Buck McKeon's proposal would ensure that detainees could indeed plead guilty, and it's an open question whether this was meant as an overture to Republicans in Congress. If that's the case, I wonder what the administration got in exchange -- or whether this was another example of the White House giving away their biggest bargaining chip before anyone even shows up at the negotiating table. It's also ironic that the 9/11 trials may have become politically untenable to the White House the moment Tanzania bomber Ahmed Ghailani was convicted of a crime for which he -- like the rest of his accomplices tried in federal court -- will spend the rest of his life in prison.
Republicans will argue that they've "won" the argument over the efficacy of federal courts for trying terrorists, which is nonsense. They won a political battle, which is not the same thing. The larger victory here is for the murderers who can now claim that their prowess as warriors is so legendary, their powers so fearsome, that they cannot possibly be tried in federal courts. A federal trial for the 9/11 conspirators might have dispelled that myth for good; now it may remain with us forever.
