According to reports first published in the Washington Post, Obama is being urged by key advisers to return to the Bush administration's plan to try the alleged al-Qaeda terrorists before special military tribunals.
At some point in the next week, President Obama is expected to announce whether he's decided to backtrack on his decision to try Khalid Shaikh Mohammed, the self-admitted mastermind of the 9/11 atrocities, and four of his alleged co-conspirators in federal criminal court.
According to reports first published in the Washington Post, Obama is being urged by key advisers to return to the Bush administration's plan to try the alleged al-Qaeda terrorists before special military tribunals. If the president, who campaigned on a promise to restore the rule of law in the treatment of the jihadis, reverses course, it will be not only a lamentable triumph of politics over principle but an affront to common sense and some of our most valuable historical precedents.
Attorney General Eric H. Holder Jr. put the matter squarely when he announced the administration's initial decision to shift the 9/11 trials to a federal criminal courtroom in Manhattan, as part of the plan to close the last remnant of the Bush/Cheney gulag at Cuba's Guantanamo Bay. "We need not cower in the face of this enemy," Holder said at the time. "Our institutions are strong, our infrastructure is sturdy, our resolve is firm and our people are ready."
That's not wishful idealism; it's a sentiment backed by hard experience. Other al-Qaeda-linked terrorists who have passed through the normal criminal justice process are the so-called blind sheik, Omar Abdel Rahman; Ramzi Yousef, who engineered the 1993 World Trade Center bombing; and 9/11 conspirator Zacarias Moussaoui. All were tried and convicted, and all are serving life sentences in federal prison — in the latter two cases without possibility of parole. Ahmed Khalfan Ghailani, a Tanzanian accused of participating in the 1998 bombings of American embassies in East Africa, was transferred from Guantanamo to Manhattan last June, and proceedings against him there continue.
The notion that Mohammed, his alleged accomplices and the other 35 Guantanamo detainees the administration says it wants to bring to trial pose some particular challenge or threat that these other defendants didn't is simply absurd. The only real difficulties posed by these new cases are the ones created by the extra-legal, extra-judicial handling of their situations up to now, mainly the use of torture to obtain confessions and other evidence. Those problems — products of the previous administration's panicked overreaching — are going to be there no matter how or where these trials are conducted.
Col. Jeffrey Colwell, the Marine lawyer now acting as chief defense counsel at the Defense Department's Office of Military Commissions, had the matter right when he told the Post last week: "I thought the decision where to put people on trial — whether federal court or military commissions — was based on what was right, not what is politically advantageous."
That's the other issue here. The White House appears as if it's being pushed into this flip-flop not by a reappraisal of its principles but by politics of a particularly ugly stripe. New York Mayor Michael R. Bloomberg initially welcomed the prospect of trying the accused terrorists just blocks from Ground Zero. Local opposition to the projected expense and purported security risk soon changed not only the mayor's mind but also those of a substantial number of New York's congressional Democrats. We'll leave it to others to tell us just how much money is too much to spend on bringing the 9/11 murderers to justice, or why a trial would make New York any more of a target for terrorists than it's long been.
Another current of political pressure comes from Republican senators — notably South Carolina's Lindsey Graham — who are threatening to withhold the money it will take to convert an unused U.S. prison to house the Guantanamo detainees unless all of the trials are held before military tribunals. More recent attempts on the part of Republican activists to smear Justice Department lawyers who previously represented detainees — many on a pro bono basis — as terrorist sympathizers simply have been contemptible. It's worth noting, however, that this outbreak of McCarthyite venom is the mirror image of earlier attempts by the other end of the spectrum, first to prosecute and subsequently to persecute Bush administration lawyers, notably John C. Yoo, for the advice they gave their executive branch clients.
This is an instance in which the Obama administration must choose between principle and political expediency. The choice the White House makes will be instructive.
Timothy Rutten is a columnist for the Los Angeles Times. Readers may send him e-mail at firstname.lastname@example.org.