WASHINGTON – By reversing itself and deciding to prosecute the 9/11 mastermind before a military tribunal, the Obama administration risks alienating its left-wing base and irking conservatives.
A stern Attorney General Eric Holder, who had spent a year and a half seeking to try Khalid Sheikh Mohammed and four alleged co-conspirators in federal civilian court, announced Monday that the administration was giving up on the controversial bid.
Obama’s team had to “face a simple truth” that the congressional restrictions against trials in the United States were “unlikely to be repealed in the immediate future,” he said.
“And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.”
But the bid to lay the blame at Congress’s feet on the very day President Barack Obama officially declared his candidacy for a second term, raised some analysts’ eyebrows.
“This is a problem of Obama’s making, even though… Holder tried to blame Congress,” said Jonathan Turley, a law professor at George Washington University.
“The Obama administration is almost hypocritical in complaining about this case when the president, Obama, preserved the military tribunals.”
The president vowed to close the Guantanamo Bay prison camp within a year in one of his first initiatives after taking office in January 2009. But he failed to fulfill that goal as he struggled to tear down the counter-terrorism framework left over from George W. Bush’s administration.
David Rivkin, a conservative attorney who favors the military trial venue, complained about the “unfortunate” delay for Obama to come to his latest decision.
“We are now exactly where we were at the time this administration takes office in January 2009. Things were moving forward. Military commissions obviously have suffered considerable losses in personnel and funding,” Rivkin added.
“The administration spent those years delegitimizing the military commission and making them moribund. Obviously, it has degraded them. It’s gonna take months.”
David Glazier, a Loyola Law School professor in Los Angeles, said Obama’s move may signal he is trying to reach out to conservatives as he launches his reelection bid.
“There is a lot of conservative opposition to the idea of using federal courts trials even though they are legally preferable,” he said.
“It might be a way that the administration is trying to avoid that being a campaign issue by giving the conservatives what they want on this issue even though they know that legally it is not the right thing to do.”
Republican lawmakers largely welcomed Obama’s move and said the issue was now closed.
But pulling it all off as intended will still be a challenge.
A death penalty is not guaranteed because there is nothing under the law used in the Guantanamo tribunals to stop the suspects from pleading guilty. And in December 2008, the defendants said they were inclined to do so without a full trial.
But if one of the suspects pleads guilty in a court martial or the commission, nothing says the defendants can be put to death.
So “if the administration puts them in the military commission, and then does so in a way that they can’t get a death sentence, presumably it ends up antagonizing the very people it is trying to placate,” Glazier noted.
“The conservatives in the US that the Obama administration seems to be trying to placate by announcing military commissions, also seem determined to have a death sentence.”
And changing venue for the trials will inevitably delay them.
“Cases prosecuted by the Obama administration in the commissions now are sure to be subject to continuous legal challenges and delays, and their outcomes will not be seen as legitimate. That is not justice. Americans deserve better,” said Anthony Romero, executive director of the American Civil Liberties Union.
But for Turley, whatever delays may arise, “this decision makes us look like hypocrites and regardless of the evidence presented at the military tribunal, its legitimacy will always be questioned because of the forum in which these men were tried.”
