Endless Punting on a Trial for Khalid Shaikh Mohammed

Josh Gerstein at Politico puts together something that’s been clear for months: As long as the Obama administration can delay announcing a final disposition for the trial of Khalid Shaikh Mohammed and his fellow 9/11 conspirators — civilian courts or military commissions? held where? — that’s exactly what it’s going to do. All presidents like to maximize their options. But the Khalid Shaikh Mohammed trial is a matter of justice, and it looks like the administration simply isn’t willing to take the political heat of any decision for when, where and how to put the 9/11 conspirators up for trial.

Brookings’ Benjamin Wittes, no fan of a civilian trial for KSM, tells Gerstein that the Obama team’s punting is “disgraceful and they should be embarrassed by it.” For an administration attempting to place adherence to the rule of law at the centerpiece of a global order, it’s especially problematic.

But it probably has one political-legislative impact. One thing you haven’t read about over the past couple of months is an effort by Sen. Lindsey Graham (R-S.C.) to create a new legislative architecture for reviewable indefinite detention of terrorism suspects. Graham wants that more than he wants the KSM trial held in a military commission or the closure of Guantanamo Bay, which he has held out as the chit for the administration if it tries KSM in a military venue. And Attorney General Eric Holder signaled his assent to Graham’s proposal in testimony earlier this spring. But the inertia of the White House most likely drains the impetus for any such new system during the current legislative year.