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Obama Administration To Abandon Plans For Civilian Trials For 9/11 Plotters

After a quixotic two year search for a proper venue and process for a civilian trial Khalid Sheikh Mohammed and the other 9/11 defendants being held in the military prison at Guantanamo Bay, the Obama Administration has apparently abandoned those plans completely:

In a major reversal, the Obama administration has decided to try Khalid Sheikh Mohammed for his role in the attacks of Sept. 11 before a military commission at Guantánamo Bay, Cuba, and not in a civilian courtroom.

Attorney General Eric H. Holder Jr. is expected to announce on Monday afternoon that Mr. Mohammed, the self-described mastermind of the attacks, and four other accused conspirators will face charges before a panel of military officers, a law enforcement official said. The Justice Department has scheduled a press conference for 2 p.m. Eastern time.

Mr. Holder, who had wanted to prosecute Mr. Mohammed before a regular civilian court in New York City, changed his mind after Congress imposed a series of restrictions barring the transfer of Guantánamo detainees into the United States, making such a trial impossible for now, the official said.

Mr. Mohammed and the accused conspirators were charged before a military commission at Guantánamo Bay late in the Bush administration, and had given signs that they were preparing to plead guilty. But their trial was cut short in January 2009 when President Obama, as one of his first moves after his inauguration, froze all tribunal proceedings at Guantánamo to start a review of the counterterrorism policies he inherited from former President George W. Bush.

The administration eventually decided to prosecute some terrorism suspects in civilian courts, but to keep using a revised form of tribunals for others. Mr. Obama placed Mr. Holder in charge of deciding where each detainee should be tried.

The reality of the situation is that there wasn’t a jurisdiction in the United States that wanted to be the home of  what would arguably be the highest profile criminal trial in American history. That’s why Congress acted in the manner that it did, on a bipartisan basis. There had been some speculation that KSM and the others would be tried in a civilian trial held on a secure military base somewhere, but even that ran into the roadblock of local authorities who objected to being the locale for a trial that would potentially be a major target for terrorism. So, in the end, the Obama Administration really had no other choice but to reverse its previous decision.

In the end, though, it’s just as well that they did because it was clear from the beginning that a trial for Khalid Sheikh Mohammed and the other 9/11 suspects would have been a complete and total fraud and a perversion of justice. In a real trial, there is at least some possibility that, at the end, the Defendant could be found innocent and go free, but that was never a possibility for a civilian trial of KSM. Back in November 2009,  Attorney General Holder made clear that KSM and the others would never be set free regardless of what happened at trial. Just a few months later, White House Press Secretary Robert Gibbs said that the Administration expected that KSM would be executed after he was found guilty. President Obama said much the same thing himself in an MSNBC interview in November 2009. In an ordinary criminal trial,statements like this from the nation’s chief executive and his assistants would be considered poisoning the jury pool, but they illustrate the basic fact that the Administration never intended to give KSM a real trial, they just wanted a show trial:

Every day it appears more and more that the White House wants it both ways. They want to claim that this is a fair trial but also an act of venegeance. The terrorists will be treated as if they might be innocent — key to a fair trial — but at the end of the day they’ll get their comeuppance. If KSM & Co. get off on a technicality, don’t worry, they’ll still be locked up, but when they’re convicted the White House will claim it was always a fair process. They’ll get a fair trial from an impartial jury in New York, but it’s “fitting” and “poetic justice” that the jury will be drawn from the community that was viciously attacked on 9/11. Fair but vengeul, honest but foreordained, instructive to the world but really just about the law: The rhetoric from the White House and the Democrats isn’t persuasive to those who listen closely and certainly won’t be persuasive to foreigners Obama is determined to impress.

The point of all of this is to show that the rule of law is intact, but what the White House is doing is in fact undermining the legitimacy of the legal system by having it do something it shouldn’t. Obama, Pat Leahy, and the rest preen as if they are morally superior for preferring civilian courts, but what they are doing is undermining civilian courts, and it gets worse every time they open their mouths.

The military tribunal system is not without its own flaws, of course, and the same “show trial” element exists there to the extent that it is quite clear that KSM would not be found not guilty and would most definitely not be released if he was. In reality, what this demonstrates is the extent to which both Congress and the Bush Administration dropped the ball in the years after 9/11 in failing to adopt some kind of statutory framework governing the detention of these people. I don’t like the idea of indefinite detention without some judicial review. A President should not be permitted to label anyone, even a foreign national, a “terrorist” and lock them away forever without any review by a third party to determine whether or not they there is a legitimate reason to detain them. As much as I dislike indefinite detention, though, I like even less the idea of the justice system being used to “send a signal” when it’s clear that the outcome in Court will have absolutely no impact on whether or not someone continues to be detained.  That’s not justice, it’s a Stalinist show trial.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. legion says:

    One thing I don’t understand –

    There had been some speculation that KSM and the others would be tried in a civilian trial held on a secure military base somewhere, but even that ran into the roadblock of local authorities who objected to being the locale for a trial that would potentially be a major target for terrorism.

    How is a military tribunal any different from this? They still have to happen at some real, physical location, right? I mean, unless they’re going to hold the tribunals in the SHIELD Helicarrier, floating randomly over the ocean, there’s always going to be some sort of “local authority”, even at GITMO…

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  2. jwest says:

    Watch how the MSM handles setting new standards for acclaim.

    From this moment on, all anyone in a position of leadership need do to be hailed as scary-intelligent is to first announce an incredibly stupid idea, then decide later that he won’t follow through with it.

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  3. The military tribunals will be held at Gitmo, not at a military base in the United States.

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  4. [...] he was, I doubt he’d be announcing a resumption a military trials at Guantanamo Bay on the same day he formally begins his re-election [...]

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  5. PD Shaw says:

    I agree with Doug, but would add that the story that KSM was willing to plead guilty to the charges until transferred to the civilian court indicates to me that he too is interested in a show trial. It would have been a mess.

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  6. Tsar Nicholas says:

    Holder, Obama and Napolitano had no choice here but to recant. In the final analysis even liberal Democrats are not stupid enough to hold civilian trials for admitted terrorists in high-density population centers.

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  7. Axel Edgren says:

    America sucks.

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  8. jwest says:

    Axel,

    Where did you get access to the Obama 2012 campaign theme?

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  9. Hey Norm says:

    It would have been nice to show the world that we have faith in our justice system. But I guess you can’t show the world what doesn’t exist. Too bad we lose faith in our institutions the minute the scary men scare us. Just like Graham willing to scrap the Constitution because of Terry Jones. Some days I’m just embarrassed by our spinelessness. We can’t solve some pretty basic economic problems. We can’t solve some pretty simple domestic problems. And were Fraid of anyone who is different from our white suburban image of ourselves. Pathetic but true.

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  10. wr says:

    And we add “Tsar Nicholas” to the list of brave right-wingers who are so terrified of scary brown people that they wet themselves at the very thought of these men, chained and bound and guarded, in a courthouse in a city.

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  11. ponce says:

    “Too bad we lose faith in our institutions the minute the scary men scare us.”

    I think the problem here is we tortured KSM, not that we’re scared of terrorist.

    Besides, why would terrorists go to the trouble of attack us here when they can just take out a few of our staked goats in Afghanistan to express their displeasure?

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  12. Hey Norm says:

    @ponce…
    Well yes – torturing him was not the brightest idea – but again I think that was symptomatic of our national cowardice.

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  13. steve says:

    We should have had a civilian trial. It sends a better message and civilian courts have a better record of convictions. The courts have successfully handled other terrorists w/o letting it become a circus.

    Steve

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  14. Jay Tea says:

    We should have had a civilian trial. It sends a better message and civilian courts have a better record of convictions. The courts have successfully handled other terrorists w/o letting it become a circus.

    You wanna send a message, use Western Union.

    As far as the civilian courts and their success, I got two words for you:

    Lynne Stewart.

    You want some more words?

    Ahmed Ghalani. Acquitted on 284 of 285 charges, the only conviction for “conspiracy,” but no actual crime that he conspired to commit.

    J.

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  15. Hey Norm says:

    JT is afraid.

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  16. PD Shaw says:

    steve, what’s the record of convictions of major terrorists captured overseas by our military or intelligence operations, instead of by law enforcement? I think it’s close to zero, since most of the ones I can think of involved people getting caught attempting domestic terrorism in America or airplanes landing in America. I might be missing one or two, but it’s not enough to form a pattern.

    I think the fundamental problem is with using civilian courts to try people that were not captured through law enforcement, but through military authorization. We can try these people in civilian courts (the Clinton administration was able to do so on East Africa), but we do it by changing the customary rules that Americans enjoy. (Exemptions labelled “National Security,” “Exigency,” etc.) I think the worldwide press will figure it out, and everybody loves a hypocrite trying to prove their better than everyone else. I think no upside.

    The downside is contaminating the civilian court system with these special circumstances. Ideas don’t always stay moored to their original justification. We became less free.

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  17. G.A.Phillips says:

    Axel,

    Where did you get access to the Obama 2012 campaign theme?

    hee hee….

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  18. Jon Davidson says:

    I laughed out loud when I read that you are in North Virginia; my family originates from there.
    For your attitude about Barack Obama to be any different, he would have to walk on water, and even then you would accuse him of Satanic witchcraft. I have read your other articles, and advise others to, before giving you any credibility for objectivity.

    Your article regarding this situation is as skewed as it can possibly be. You say nothing about all of the other military tribunals trying and convicting terrorists, or their civil rights over the rights of the victims they killed.

    If everyone loves a hypocrite, I’m afraid you’re near the top of the love-fest.
    By the way, you’re an attorney, yet you don’t show much attention to detail in your punctuation and grammar. Spellcheck is free; you should use it (hint – the difference between “their” and “they’re”).

    As a descendent of North Virginia, I think you need to rep my people a little better than that; despite the dishonesty of your “objectivity”.

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  19. Jay Tea says:

    Norm rejects reality, and substitutes his own.

    J.

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  20. Barry says:

    BS, Doug – there have been numerous terror prosecutions in civilian courts. As for jurisdictional issues, since when the f*ck has that been a problem? You’re saying that a trial would attact terror attacks, but those don’t have to be in that location – NYC and DC would be quite suitable targets, no matter where the trial was. And that’s not counting the fact that Al Qaida’s reach in the USA seems to be rather limited, judging from the lack of follow-ups.

    As for the ‘bipartisan’ nature of Congress, this is a successful example of the right demagoguing (sp?) an issue, and craven Democratic politicians following. Rather a failure of the US system.

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  21. Barry says:

    Doug Mataconis says:

    “The military tribunals will be held at Gitmo, not at a military base in the United States.”

    And so Al Qaida will stage a reprisal attack, on Gitmo, because that’s where the trial is?
    Only to run into our hidden defenses there?

    Doug, I’ve given up on you at this point. You are repeating incredibly stupid talking points, and then doubling down on them.

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  22. ikners.com says:

    [...] Obama Administration To Abandon Plans For Civilian Trials For 9/11 Plotters (outsidethebeltway.com) [...]

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