Report: KSM Trial in Military Commission

Sounds like the administration might back down, if this Washington Post story is true, and good sense might prevail for a change. However, could this be just some Chicago-style dealmaking to allow for the Gitmo shut down?

President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.

The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some terrorism suspects in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

If Obama accepts the likely recommendation of his advisers, the White House may be able to secure from Congress the funding and legal authority it needs to close the U.S. military prison at Guantanamo Bay, Cuba, and replace it with a facility within the United States. The administration has failed to meet a self-imposed one-year deadline to close Guantanamo.

Writing at NationalReviewOnline, Dana Perino and Bill Burck comment on this development:

Anthony Romero of the ACLU tells the Washington Post that the White House’s decision will be “a death blow to [President Obama’s] own Justice Department.” Romero is half right — it is a death blow to the current Justice leadership and President Obama is partly to blame for allowing Holder to be in charge of the decision for a time. But let’s not forget the attorney general himself. With stunning arrogance, Holder imposed his will on New York without consulting the mayor or the police chief. After all, Holder doesn’t feel it’s necessary to consult with the intelligence services when a terrorist is captured trying to blow up an airplane, so why would he consult with mere local officials? Well, those local officials were more than Holder bargained for, and once they realized how expensive, disruptive, and totally unnecessary a civilian trial in New York would be, they told Holder to take his trial somewhere else.

The Post is also reporting that the White House is looking to cut a deal with Sen. Lindsey Graham to close Guantanamo in exchange for trying detainees in military commissions. As we have said before, we haven’t heard a justification for closing Guantanamo that would outweigh the huge downsides. Guantanamo remains the best place to hold these terrorists. Once they set foot on U.S. soil, they will acquire a whole set of rights to which they are not currently entitled — not to mention the security risks of turning the military base in the U.S. which would hold them into a prime target for al-Qaeda.

Administration Considers Flexibility on KSM Trial

The administration may be laying the groundwork for some major backpedaling:

The Obama administration prefers a civilian trial for the alleged 9/11 mastermind, but says that in the face of public and political opposition it must be open to a military tribunal.

In an interview published Monday in The New York Times, Attorney General Eric Holder said, "I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side."

However, Holder did not rule out a military trial for Khalid Sheikh Mohammed, saying, "You have to be flexible." [AP]

As we have pointed out previously, Holder should have recused himself from this entire transaction given that his former law firm represented various detainees.

And administration officials have repeatedly claimed that KSM will be found guilty. Doesn't that taint the jury pool?

Sen. Graham Blasts Administration's Policy Of Trying Terror Detainees in Civilian Court

While he can be wobbly on certain issues, Sen. Lindsey Graham (R-SC) did an excellent job on FNC today assailing the administration's ill-conceived counter-terrorism policies when it comes to treating enemy combatants as common criminals:

While Graham conceded that Gitmo is the best run prison in the world, he said he is nonetheless willing to support the administration's effort to shut down the prison provided the White House adopts a "national security-centric system."

KSM Terrorism Trial To Get Venue Change

Moving this trial out of New York City is a start, but the administration needs to abandon the entire ill-advised idea of trying these defendants in criminal court:

Facing growing opposition to its plans to hold the Sept. 11 terrorist trial in New York City, the Obama administration is considering moving the proceedings elsewhere.

Two administration officials, speaking on condition of anonymity, said Friday the Justice Department is drawing up plans for possible alternate locations to try professed 9/11 mastermind Khalid Sheikh Mohammed and four alleged accomplices in case Congress or local officials prevent the trial from being held in Manhattan.

The Washington Post reports that Congress may try to block federal criminal trials for detainees:

Sen. Lindsey O. Graham (R-S.C.) plans to introduce a bill next week that would prohibit funding of a federal trial for Mohammed and other Sept. 11 defendants, in an effort to force the case into a military tribunal. An earlier such legislative effort failed, but a spokesman for Graham said that the senator has been taking the pulse of his colleagues and that "momentum has been building."

The same Post article says that the Gitmo jail may stay in operation longer than the administration that wants to shut it down:

The closure of the military detention center at Guantanamo Bay, Cuba, is beginning to look like a protracted and uncertain project for the Obama administration as political, legal and security concerns limit the president's options.

Having blown the one-year closure deadline set last January in an executive order, the administration is planning to transfer some detainees to a state prison it hopes to acquire in Illinois. But there appears to be little mood in Congress to provide the administration with either the funding for the prison or the authority to transfer detainees who will be held indefinitely.