Retired Army Maj. Gen. William Nash, who served in Vietnam, the Gulf War and Bosnia, said he got “worked up” reading the Post’s story this morning:

“Any time you do something hard, there’s a time where maybe you have second thoughts. That’s the time any good leader has got to remind himself about the story about ‘steady boy steady.’… The machinations of those who are afraid of these terrorists, who are afraid of American laws, who are afraid of this process that lived by under the rule of law for many many years — centuries — this is not the time to allow them to have their fear drive us away from doing the right thing… This is not the time to be scared. This is not the time to accomodate those who have led the country through an aura of fear for eight years. it’s time to do the right thing and persevere through.”

Retired Army Lt. Gen. Harry Soyster, a former director of the Defense Intelligence Agency, had harsher words:

“My concern is what it looks like to our enemy. And they certainly should be delighted in what appears to be great confusion, great ambiguity and inability to address the issue, so they should feel they are making progress if in fact our initial stand is reversed. from my perspective, the president [initially] chose chose the harder right over the easier wrong when he made the stand, supported his attorney general…and he should hold firm to that.”

Soyster rejected any trade, pushed by Sen. Lindsey Graham (R-S.C.) and White House Chief of Staff Rahm Emanuel, that would involve closing the detention facility at Guantanamo Bay in exchange for a military tribunal for Khalid Sheikh Mohammed. “Both should be done,” Soyster said. “Guantanamo should be closed and the [KSM] trial should be done in an Article 3 federal court… We need to do the right thing.”

Retired Navy Real Adm. John Hutson, the Navy’s Judge Advocate General from 1997 to 2000:

“If you were from Mars and you came to earth and were told there were two options for prosecuting these guys. And one of them was federal courts, where we’ve done 200 of these [terrorism] cases over the last nine years, 90-percent-plus conviction rate, people successfully imprisoned, experienced judges, experienced prosecutors and all of that. Or you could go to a military commission which the Supreme Court has already struck down once, they’ve got three cases [with] two guilty pleas — both of those guys are out of jail — no experienced judges, no experienced prosecutors and a tenuous judicial system at best which is untried up to now in any real sense — which one you choose is pretty clear. Then you put on top of that the Constitution very clearly provides the president in his capacity as commander-in-chief is responsible for the prosecution of the war — and I would argue all of this is part of that responsibility, in how we go forward with the war — and the Department of Justice is responsible for the prosecution of federal prisoners, it’s clearly in the authority and the responsibility of the executive branch to do this.”

“Putting a military face on the American judicial system is counterproductive for our image abroad,” Eaton continued, recalling his work to convince Iraqi soldiers to obey the rule of law and civilian control of the military. “If you put the judicial system into the military’s hands, that is really a challenge to the premise that civilians and not the military are responsible for guiding and directing military activities. It is really a logic break to try these cases in a military setting.”

The opposing argument, made by Rahm Emanuel, is a political one. (And apparently not shared by David Axelrod.) It’s that the trial is a political headache and the cost of closing Guantanamo Bay, another administration priority, is the vote of Sen. Lindsey Graham (R-S.C.) — and the cost of Graham’s vote is to try KSM in a military commission. Graham showed his utility to the administration yesterday, going to bat for Obama’s right to try at least some terrorism detainees in civilian court after his close political allies, Sens. Joe Lieberman (I-Conn.) and John McCain (R-Ariz.), released a bill providing for indefinite detention without trial for terrorism suspects.

That’s not to say the Department of Homeland Security isn’t preparing to lend support to municipal law enforcement. “If the trial is held in a U.S. district courthouse, as currently constructed, we would have an inner ring of the U.S. Marshall Service,” Beers said. “We would have an exterior ring, which would probably involve the Federal Protective Service, and we would have an interagency, intergovernmental task force, which would involve the state or local entity that would be responsible for law enforcement in those areas. And there was certainly discussions with respect to that if the trial were going to be in New York. I can assure you those same discussions are going to take place any other place that that determination is made to locate the trial.”

Emanuel lost the initial fight with the president on that score. And apparently for good reason. The Post reports that he was the only one making the case for the commissions:

According to a person familiar with the conversations, who discussed the confidential deliberation on the condition of anonymity, Emanuel made his case to Obama, articulating the political dangers of a civilian trial to congressional Democrats. Attorney General Eric H. Holder Jr. presented a counterargument rooted in principle, for civilian trials.

David Axelrod, senior adviser to Obama, supported Holder, the source said. The president agreed that letting the Justice Department take the lead was the right thing to do.

So the attorney general and one of the political strategists key to electing Obama made a principled case and Emanuel offered… Lindsey Graham, who doesn’t control any congressional committees and who has a dubious record of bringing Republican Senate votes along with him. This is “political reason” how, exactly?

“At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it’s done as transparently as possible and with adherence to all the rules,” Holder said. “If we do that, I’m not sure the location or even the forum is as important as what the world sees in that proceeding.”

My emphasis. The issue is that President Obama needs to go to Congress to ask for the money for the trials. Despite the strong support for criminal trials yesterday from Sens. Dianne Feinstein (D-Calif.) and Patrick Leahy (D-Vt.), the chairs of the intelligence and judiciary committees, Senate Republicans will doubtlessly try to block the funding and compel a change of venue for the military commissions. Holder, naturally, can’t let himself say that a military commission is an  inappropriate venue if ultimately the U.S. is going to have to move the trials there.

But he’s still going to have to make an argument for why it’s preferable for the trials to occur in civilian courts. Holder tells the Post, ”Trying the case in an article III [federal] court is best for the case and best for our overall fight against al-Qaeda.” But that’s got to be coupled with an argument, ultimately, for why the military commissions are worse for that fight. John Brennan, the White House counterterrorism chief, made part of that case earlier this week, when he observed, “There have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system — including high-profile terrorists such as Reid and 9/11 plotter Zacarius Moussaoui.”

The trouble is that the administration has also embraced military commissions. So conservatives can just as easily say: Why should the most important al-Qaeda detainees get civilian trials but some kid who threw a grenade at a U.S. soldier at the Taliban’s behest get a military tribunal? And that’s not a question the administration wants to answer, given the emphasis it placed last year on revamping the commissions. If the administration replies, Well, it’s important to display the strength of American justice internationally, then it can’t very well continue to defend the military commissions. The easiest thing to do here, if the administration really believes in the commissions, is to give the GOP what it wants.

For civil libertarians, the coming fight might be an opportunity to weaken the Obama administration’s commitment to the process-challenged commissions, or at least test how strong that commitment really is in the face of both political pressure and the principled counterterrorism priority of convicting the terrorist conspirators.

Not really, it turns out. Today, she and Sen. Patrick Leahy (D-Vt.), the chairman of the judiciary committee, wrote to the president to express full support for civilian trials for terrorists. And they’re also trying to forestall any effort by congressional Republicans to compel trials in military commissions. “Congress should not tie the hands of our national security and law enforcement agencies, but should instead ensure they have the flexibility to use every means available,” Feinstein and Leahy wrote. “Congress should be working with you in a shared mission to most effectively protect our national security and to ensure that just convictions, once obtained, will be sustained and upheld.”

Read the full letter after the jump.

February 11, 2010

The Honorable Barack Obama
President of the United States
The White House
1600 Pennsylvania Avenue, NW
Washington, D.C. 20500

Dear President Obama:

We are writing today to endorse the use of our Federal criminal courts to prosecute and bring terrorists to justice. As we all work to strengthen our counterterrorism efforts, Congress should not interfere with your administration’s using all available means to make us safer and more secure.

Our counterterrorism agents, prosecutors, and Federal criminal courts have the track record to show that they are capable of handling these cases. In hundreds of cases – both before and after September 11 – our courts have demonstrated that they can handle sensitive classified information, security, and other legal issues related to terrorism and national security. The Senate Judiciary Committee has held several hearings on the issue of how to best handle terrorism suspects and Guantanamo detainees. Experts and judges have agreed that our criminal justice system can handle this challenge.

We disagree with those who contend that our investigators, prosecutors, courts, and the men and women who protect our courts and prisons are not up to the task of bringing these terrorists to justice. We should not let partisan distractions lead us to cast aside such valuable tools as the experienced terrorism interrogators of the FBI or forego convicting terrorists in our Federal courts. Nor are these efforts mutually exclusive from obtaining valuable intelligence. Just last week, during a hearing in front of the Senate Select Committee on Intelligence, Director Mueller acknowledged that Umar Farouk Abdulmutallab is providing valuable intelligence. This is after he received medical attention and after he was read the Miranda warning.

There has been debate about whether to try the men accused of plotting the September 11 attacks in civilian courts or military commissions. We believe that whether such a trial is held in New York City or another location, these men should be brought to justice in a Federal court. Article III courts have proven to be the most capable venues to try and convict dangerous terrorists. These men should finally face justice.

We commend the Attorney General’s decision to make these men answer for their heinous acts and hold them accountable. As Paul Bremer, one of President Reagan’s top advisers on counterterrorism explained during the Reagan administration, a longstanding element of our overall strategy against terrorism has been to “use democracy’s most potent tool, the rule of law, against them” and to delegitimize them.

Our system of justice is strong enough to prosecute the people who have attacked us. There are hundreds of inmates in the United States who have been convicted of crimes related to international terrorism. The “supermax” facility in Florence, Colorado, houses 33 of these international terrorists. There has never been an escape from that facility.

We appreciate this administration’s willingness to use all possible venues to seek justice. The September 11 defendants and Umar Farouk Abdulmutallab will face trial in Federal court; the USS Cole defendants will face trial before a reformed military commission; and Major Nidal Hasan, the alleged Fort Hood shooter, is charged in a court martial. Congress should not tie the hands of our national security and law enforcement agencies, but should instead ensure they have the flexibility to use every means available. Congress should be working with you in a shared mission to most effectively protect our national security and to ensure that just convictions, once obtained, will be sustained and upheld.

Respectfully,

PATRICK LEAHY DIANNE FEINSTEIN
Chairman, Senate Committee of the Judiciary Chairman, Senate Select Committee on Intelligence

One dissent from the New Yorker chorus of KSM panic: Rep. Anthony Weiner (D-N.Y.), who argued today that New Yorkers are looking weak by biting their nails over KSM.

But Feinstein made a more alarming argument to Obama and Holder. “Without getting into classified details, I believe we should view the attempted Christmas Day plot as a continuation, not an end, of plots to strike the United States by al-Qa’ida and its affiliates,” Feinstein wrote. That sounds a lot like Feinstein has seen intelligence suggesting that there are active plans under way by al-Qaeda or its franchises to hit the U.S. domestically.

Feinstein’s full letter is after the jump.

January 29, 2010

The President
The White House
1600 Pennsylvania Avenue
Washington, D.C. 20500

Dear Mr. President:

I urge you to reconsider the decision to bring 9/11 terrorist mastermind Khalid Sheikh Mohammed to justice in New York City.

First, the concerns of New York City Mayor Michael Bloomberg and other local government officials should be taken seriously. The mayor’s concerns, raised earlier this week in a departure from his initial views, focused on the costs associated with the trial and the burdens on residents and businesses in Lower Manhattan. New York City could incur security costs of more than $200 million annually on security for the trial; Mayor Bloomberg cited a figure this week as high as a billion dollars overall. While the federal courthouse planned for use is extremely secure, the additional precautions that would be necessary to protect the surrounding areas could overburden law enforcement and prove an unnecessary burden on federal, state, and local governments. Reportedly, local police estimate that more than 2,000 checkpoints would need to be installed around Lower Manhattan for trial security.

Second, the terrorist threat to the United States remains high. Without getting into classified details, I believe we should view the attempted Christmas Day plot as a continuation, not an end, of plots to strike the United States by al-Qa’ida and its affiliates. Moreover, New York City has been a high-priority target since at least the first World Trade Center bombing in 1993. The trial of the most significant terrorist in custody would add to the threat.

To be clear, I have great respect for the professionalism and sophistication of the intelligence and national security capabilities of both the federal government and the New York Police Department. Our adversaries are capable and adaptive, however, and I believe holding this trial in Manhattan makes their interest in a terrorist attack even stronger.

Third, setting the trial in New York City, blocks away from Ground Zero of the 9/11 attacks, would only heighten media and public attention. We know from his conduct during pre-trial proceedings at Guantanamo that Khalid Sheikh Mohammed is seeking to turn the trial into a venue for spreading his twisted views. We do not need to allow him to spew hatred to a larger audience and attempt to radicalize more future terrorists.

The bottom line is that decisions over the trial of Khalid Sheikh Mohammed should be made with consideration of the views of local governments, the security involved, and the costs. You have the flexibility to move this trial to a less prominent, less costly, and equally secure location. In my view, trying Khalid Sheikh Mohammed in New York City presents an avoidable danger, very large costs, and undue burdens on the city.

Thank you for considering my views. I look forward to continuing to work with you on this and many other issues.

Sincerely,

Dianne Feinstein
Chairman

cc: The Honorable Eric Holder, Attorney General
Members, Senate Select Committee on Intelligence

The Washington Post points out that the Obama administration is running out of options for closing Guantanamo. Too true — it needs about a $150 million appropriation to buy the Thomson Corrections Center if it wants GTMO shut down. So the question becomes which must-pass bill will be the vehicle for that funding. The Afghanistan war supplemental? The overall defense budget?