So can the Obama administration manage to reach a decision more craven than this one? According to the Washington Post, the months-long internal administration deadlock over trying Khalid Shaikh Mohammed and the other 9/11 co-conspirators has resulted in a decision: apoplexy. No trying them in federal courts in New York; no trying them at Guantanamo Bay in a military commission. Just… nothing.
The Post story is something of a mixture between reporting a decision and inviting administration officials to opine on the predicament they’re in. There’s basically a no-decision here: administration officials feel buffeted between conservative opposition to a civilian trial and liberal opposition to military commissions. Aww, poor them! So the alternative choice is to stall, despite last year’s rhetoric about “bring[ing] to justice those individuals who have conspired to attack our nation and our interests abroad,” meaning that “a trial is unlikely to happen before the next presidential election and, even then, would require a different political environment.”
And that’s the maddening thing. The Obama team talks about a “different political environment” as if it has nothing to do with creating one. Attorney General Holder talks about federal courts’ capability for handling terrorism trials — you see dangerous secrets leaking out of the Ahmed Khalfan Ghailani trial? Or al-Qaeda storming Manhattan, Cobra-style, to free their comrade? — and then undercuts his own arguments with a defense of military commissions and indefinite detention without trial. And that’s all the opponents of a federal trial — the good-faith opponents, like Lindsey Graham — need to contend that any other venue for trying or not-trying KSM is preferable. Graham may not have compelling arguments for his military-commissions and indefinite-detention advocacy. But politically, he’s got devastating ones — If KSM doesn’t qualify for a military commission, who does? – brought to him by the Obama administration.
“We have said he should be brought to justice, and brought to justice swiftly,” one of the senior officials said. “The problem is these legacy cases have been very heavily bogged down in very strong feelings and very heavy politics, and therefore it has become very difficult to work this through to a successful conclusion.”
Well, then make a case, and make it consistently. Build support and maintain it. Be willing to stake political capital on it. Or concede that you never meant what you said about justice. What will the Justice Department say when Graham reintroduces his indefinite-detention statute in the next Congress?