Will Obama Really Give Up on KSM Trial Without a Fight?

March 05, 2010 | Last updated: July 31, 2020

The Washington Post is pretty sure that Obama’s advisers are congealing around abandoning Khalid Sheikh Mohammed in civilian court. Apparently President Obama has yet to make a decision. If he goes back to the military commissions for KSM and the other 9/11 conspirators — military charges against them were dropped in late January — Obama won’t just be abandoning the civilian courts. He’ll be abandoning a winnable political battle on a matter of principle.

Attorney General Eric Holder has gone very far out in recent weeks to defend the principle of civilian trials for terrorists. “If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder told The New Yorker’s Jane Mayer, adding that he was “distressed” that people “who know better” were demagogically and speciously claiming civilian courts are incapable of trying terrorists. As the fight over the KSM trial — no longer hypothetical after New York rejected holding it at the Foley Square courthouse — intensified, so did Holder, putting up webpages touting the courts’ superior record of convicting terrorists. Sensing the heat from conservatives, Obama’s other senior aides followed suit. John Brennan, the White House counterterrorism chief, noted in USA Today that “there have been three convictions of terrorists in the military tribunal system since 9/11, and hundreds in the criminal justice system,” a point Vice President Biden amplified on the Sunday chat shows. Defense Secretary Robert Gates backed Holder in a letter to Congress last week, and his defense budget request put the money for closing Guantanamo Bay and moving terrorists to the U.S. — the only substantive congressional hurdle for any trials, military or civilian — in the Afghanistan war funding request, the most politically unstoppable budget line the government has. 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.

What Obama will actually gain by siding with Emanuel and Graham over his national-security team and his law-enforcement team is, to say the least, less than clear. Graham’s ability to bring Republicans on board to any Obama initiative is dubious — even for a legal architecture for handling terrorism that already embraces huge swaths of the Bush agenda. Recall that Obama compromised from the start in May by embracing revised versions of the military commissions system, and even reserving the right to hold suspects indefinitely without trial, over the objections of civil libertarians. That didn’t earn him any GOP votes, nor did it quiet the chorus on the right that Obama’s very presidency endangers the country. Even Graham, as reasonable and civic-minded a Republican Senator as there is, decided to test Obama’s willingness to move to the right. Telling any paper he could find that he and Emanuel were working on a GTMO-for-KSM trade, Graham added a new criteria for his vote in a Wall Street Journal interview: Obama also needed to establish a new system of national security courts. The pattern couldn’t be clearer. Every time Obama compromises on a matter of national-security and civil-liberties principle, his GOP opponents raise the pressure to get him to bend further. His compromises earn him no good will. He is being, simply, punked. And if he compromises on KSM, does he really think the Guantanamo Bay votes will roll in; or will he simply have enough to break a potential filibuster *around the Afghanistan war funding request? *Obama can fight and win. Or he can compromise, demoralize his base, and the GOP will continue to roll him.