Eric Holder’s announcement earlier this week that Khalid Sheikh Mohammed (KSM) and several other 9/11 plotters will be tried in military tribunals represents another step in Obama’s ‘close Guantanamo’ saga.
The saga began in Obama’s first week as president, when he signed the infamous Close Guantanamo executive order (you can read the executive order here). In addition to ordering the closure of Guantanamo within a year, the order halted military commissions until the completion of a review, which would determine whether each detainee could be released, transferred, or prosecuted. Then, in May 2009, Congress stepped in to thwart the plan by denying funding for Guantanamo detainee transfers. Still, after the passage of the Military Commissions Act of 2009, the Department of Justice announced the establishment of a two-tiered system, in which some Guantanamo detainees would get federal trials and some military tribunals. And in November 2009, Holder announced that KSM would get a civilian trial in New York. As Glenn Greenwald notes, political backlash led the Obama administration to reconsider. Congress added Guantanamo detainee transfer restrictions to a defense authorization bill, and instead of fighting the measure with a veto threat, Obama signed the bill in January 2011.
Then we come to Holder’s Monday announcement, an official reversal of the track Holder declared about a year and a half ago. And it makes sense to ask: why a military tribunal?
The Obama administration had three choices: fight to overturn the Guantanamo transfer restrictions and prosecute KSM in a civilian court, proceed with a military tribunal, or do nothing. The first option would be politically unwise, as Obama advisers realized in mid-2010 when they faced bipartisan political resistance to the announced KSM civilian trial. The second option also has political risks. It has disappointed the base: Rachel Maddow claimed that leaders of the Democratic Party “hate the Democratic base” and “think it‘s good politics for Democratic politicians to kick that base publicly whenever possible.” It has also left Obama open to accusations of hypocrisy and spinelessness: “President Obama will try Khalid Sheik Mohammed at a facility he vowed to close and by a process he harshly condemned,” writes a National Review columnist.
So why do anything? It’s perfectly legal to do nothing, as Lawfare‘s Benjamin Wittes will be quick to tell you. It may even be the best option, as Lawfare‘s Jack Goldsmith has argued. There are dangers though. As I’ve written before, if we don’t prosecute these detainees, the legal rationale for their detention could fall away when the U.S. is no longer involved in combat operations in Afghanistan.
But this isn’t the Obama administration’s expressed concern. According to Holder: “This case has always been about delivering justice for those victims, and for their surviving loved ones. Nothing else.” Though he also notes that some of the victims’ families disagree with the military tribunal option. And the way Holder speaks of the desirability of civilian trials indicates a national security element:
Our national security demands that we continue to prosecute terrorists in federal court, and we will do so. Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.
Though Holder doesn’t frame the KSM military tribunal in national security terms, bringing KSM to justice, even in a military tribunal, likely carries similar national security benefits. And maybe the political assaults levied at Obama from both sides of the political aisle won’t find much resonance since a majority of Americans prefer military tribunals. It would be nice to think this is just about justice and nothing more, but one cannot ignore that it is also about politics and national security.
