Reversal, capitulation, weakness: Obama, Congress, and the trial of Khalid Shaikh Mohammed

By Michael J.W. Stickings

There was much ado yesterday over the Obama Administration's apparent "reversal" with respect to where and how to try 9/11 mastermind Khalid Shaikh Mohammed and four others involved in the attacks. They will be tried not in a civilian court but before a military commission at Gitmo.

The NYT's Charlie Savage called it "a major policy reversal," suggesting that the White House "abandoned [its] plan amid a political backlash." While "[t]he shift was foreshadowed by stiffening Congressional resistance to bringing Guantánamo detainees into the United States, and by other recent steps clearing the way for new tribunal trials,... it marked a significant moment of capitulation in the Obama administration's largely frustrated effort to dismantle counterterrorism architecture left behind by former President George W. Bush."

Reversal. Capitulation. Apparently it's all Obama's fault.

But is it? Savage goes on to note that Attorney General Holder "stood by" his initial determination that KSM et al. should be tried in a civilian court. "He criticized restrictions imposed by Congress last year that banned the military from using its funds to transfer detainees to domestic soil, even for trials."

Well, that's it, isn't it? It's not what Obama did, it's what Congress did to limit his options. Steve Benen explains:

Holder told reporters [yesterday] afternoon that his original decision was still the right one, but blamed Congress for "tying our hands."

He happens to be right. Even today, Holder wants to do the right thing, and so does President Obama. And yet, Gitmo is open today, and KSM will be subjected to a military commission in the near future, not because of an administration that backed down in the face of far-right whining, but because congressional Republicans orchestrated a massive, choreographed freak-out, and scared the bejesus out of congressional Democrats. Together, they limited the White House's options to, in effect, not having any choice at all.

There's plenty of room for criticism of the administration, but those slamming Obama for "breaking his word" on this are blaming the wrong end of Pennsylvania Avenue.

This is not to excuse how Obama has handled "national security" so far. In many respects he has maintained the Bush-Cheney national security state, including some of its worst elements. And, of course, Congressional opposition to trying accused terrorists in civilian courts gives him cover. He (or Holder) can blame Congress, an easy target. Obama (and Holder) could have pushed harder to get what they supposedly want, just as they could push harder to close Gitmo, but they don't want to.

It's sort of like how Obama could have pushed harder for a public option to be included in the Affordable Care Act or for earlier DADT repeal. He always blames Congress for tying his hands, even though he's the one with the bully pulpit (and significantly greater popularity than either party in Congress).

Yes, Steve is right. Congress deserves the blame for this. But let me qualify that. Congress deserves much of the blame for this. Because Obama deserves some of it as well.

As CBS News is reporting, "Obama said last month that he remained committed to trying terror suspects in federal courts," yet he also "approved the resumption of military trials for detainees at the Guantanamo prison, ending a two-year ban." Yes, yes, his hands were tied, what else could he do? I get that. It's hard to get very far with Republicans and cowardly, appeasement-minded Democrats blocking him.

The problem is that, with respect to national security and the "war on terror," Obama hasn't done nearly enough to secure our trust, to suggest that, regardless of what Congress does, he isn't just a somewhat softer replica of his predecessor. It may be correct in this case to blame Congress, but if the president really wants to move away from Bush-Cheney, on terrorist trials or otherwise, he needs to show the necessary leadership to make it happen. Because it just isn't all that presidential to throw your hands up in frustration, whether you mean it or not.

Worst Democrat of the Day: Robert Gibbs

By Michael J.W. Stickings

Firedoglake's Cynthia Kouril explains it well:

White House press spokesman Robert Gibbs just said [yesterday on CNN] that Khalid Sheikh Mohammed (KSM) would likely be executed after trial and conviction. WTF?!?

Am I the only person left who still remembers a legal concept called presumption of innocence? Am I the only one who remembers that the whole point of a trial is that the outcome is not certain?

Listen Gibbs, do NOT insult the prosecutors who are about to work their asses off trying to put together a winning criminal case. Do NOT insult the hardworking defense counsel who are going to put thousands of hours into making sure that KSM gets due process. Do NOT insult the excellent federal judges of SDNY by suggesting that any one of them would preside over a kangaroo court. Do NOT insult our entire criminal justice system.

In a real trial, the outcome is not known before the trial occurs. Further, much of the information in the hands of the government which will be used at trial against KSM should currently be Grand Jury Material, subject to secrecy under Rule 6e. Which means that you, Robert Gibbs, cannot legally know exactly what that evidence might be.  So, how could you possibly know if KSM is going to be convicted? How do you know that?

You don't. So stop shooting you mouth off and calling our system of justice and the dedicated professionals of both bench and bar in the Southern District of New York into disrepute.

Yes. What she said.

(So shut up, Robert Gibbs. You're the president's press secretary. You should know better. Show some respect for the American legal system. And for justice.)

U.S. to move 9/11 terrorism trial out of NYC

By Michael J.W. Stickings

NYT:

The Obama administration on Friday gave up on its plan to try the Sept. 11 plotters in Lower Manhattan, bowing to almost unanimous pressure from New York officials and business leaders to move the terrorism trial elsewhere.

*****

The reversal on whether to try the alleged 9/11 terrorists blocks from the former World Trade Center site seemed to come suddenly this week, after Mayor Michael R. Bloomberg abandoned his strong support for the plan and said the cost and disruption would be too great.

But behind the brave face that many New Yorkers had put on for weeks, resistance had been gathering steam.

I understand the security and logistical concerns involved with trying Khalid Shaikh Mohammed and four other 9/11 plotters in Manhattan, as well as the strong resistance to it, but, as I just said on Jazz Shaw's Mid Stream Radio show, on which I was a guest from 1:30 to 2:00, I think the symbolism of doing it New York, America's primary terrorist target, as well as perhaps the most important city in the world, would have been immense, an expression of American strength, authority, confidence, and determination, a statement that the U.S. isn't backing down in the face of terrorism, and isn't solely relying on military might, that those who are charged with such horrendous acts will be treated fairly, under the law, according to America's values and principles -- in short, that America isn't like its enemies.

Given the significant hit America's credibility and moral standing took both at home and abroad as a result of how it handled the war on terror -- a disastrous war in Iraq, torture and "enhanced interrogation," Gitmo and military tribunals, etc. -- a civilian trial in New York would have done a great deal, it seems to me, to show that America has recovered from the abuses and excesses of the Bush years.

Are military commissions really much different?

Guest post by Michael Foote

Michael Foote is a deputy district attorney in Boulder, Colorado and a principal at the Truman National Security Project. This is his first guest post at The Reaction.

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Many critics of Attorney General Holder's decision to prosecute Khalid Sheikh Mohammed (KSM) and his fellow 9/11 conspirators in federal criminal court seem to believe military commissions would be an efficient and straightforward solution to all the weaknesses present in criminal courts. They promote military commissions as some kind of panacea that would disperse efficient and certain justice to KSM and other terrorists. When one actually understands the two systems, however, it becomes apparent that disparagement of the criminal system and praise for the military commissions both go too far.

In reality, the systems are similar in many ways. Try to figure out which system is described below:

A terrorist defendant is informed in open court of the charges against him, which include murder and conspiracy to commit murder. He is presumed to be innocent. The defendant hires a well known and effective defense attorney who in turn files numerous motions demanding information, suppressing statements, and to dismiss the charges. Some of the demanded information is classified so the judge denies those requests. Some of the defendant’s statements are in fact suppressed while some are admissible. After extensive pre-trial litigation, the trial finally begins. Twelve jurors are seated and they must determine whether the defendant is guilty beyond a reasonable doubt. The defendant is allowed to testify and takes advantage of the opportunity to justify his actions and defend al Qaeda ideology. If the defendant is convicted, he has the right to appeal his conviction in a federal appellate court and even ask the Supreme Court to hear an appeal.

If you guessed this scenario describes a federal criminal court, you are correct. If you guessed it is a military commission, you are also correct. That is because both have many of the same characteristics. In KSM's case, his trial in both would unfold in a very similar way.

How do we know this? Take a look at the military commissions rules of evidence and rules of procedure. Or, for a succinct summary, read a recent report comparing the two systems by the Congressional Research Service.

In both systems, KSM can hire the attorney of his choice. Statements he made about the 9/11 plot before his capture and in court proceedings afterwards would be admissible in both systems. When the death penalty or imprisonment over ten years is sought, all members of a twelve person military commission must agree on the verdict. The government must overcome KSM's presumption of innocence by proving its case beyond a reasonable doubt.

Both systems have protections against the disclosure of classified information. Neither system can force KSM to testify, but both allow him to do so. Both systems require an impartial judge to play the leading role in adjudicating disputes and making evidentiary rulings.

So, when Alabama Senator Jeffrey Sessions says, "different procedures are far more appropriate" in military commissions, it is difficult to know specifically which procedures he is referencing. When he says KSM's case in federal criminal court will result in "massive pre-trial motions," he does not mention the same is true in military commissions. In fact, there is even more room for pre-trial litigation in the military commissions because of the lack of precedent in that system. Defense lawyers in the commissions will attack everything from the constitutionality of the proceedings to the most minute procedural issue.

While former Vice President Dick Cheney laments KSM's ability to "proselytize millions of people out there around the world" during his trial in New York, he fails to explain how a military commission will curtail that opportunity.

When Minnesota Representative Michele Bachmann proclaims "we would have had 100 percent certainty in a military tribunal, but because of the provisions of reasonable doubt, that could turn into something like 80 percent," as she did in a recent protest on the steps of the Supreme Court, she apparently overlooks the fact that reasonable doubt is the standard in both systems.

All this is not to say KSM's trial in criminal court will be a short process immune from intrigue and legal maneuvers. But any court with the required due process provisions will present the same prospects. If the military commission system has the due process its advocates insist, any marginally competent lawyer will be able to fight conviction every step of the way. Trying KSM and other terrorists in either system will be a complex and time-consuming process. Military commissions will hardly shortcut that fact. The use of misleading and incomplete statements about the two systems should be seen for what it is: an attempt to score cheap political points without much regard for the truth.

It simply doesn't work

By Creature

For people like Ducan Hunter and Michael Smerconish torture is about vengeance, not saving lives. If they wanted to really save lives they'd be open minded to the fact that torture does not work (if anything, it's counterproductive). Trust me, I would like to string Khalid Shaikh Mohammed up by his toes and beat him senseless just like most people, but that's not the way to get at what he knows in the best way possible.

(Cross-posted at State of the Day.)