Will Obama Argue Against His Own Military Commissions for 9/11 Perps?
The Washington Post has an interview with Attorney General Eric Holder in which Holder, for the first time, appears to give himself breathing room to abandon federal criminal trials for the 9/11 conspirators:
“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.