3-5-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-posted at The Huffington Post
The Washington Post reports today that President Obama’s advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That’s more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.
To be sure, the Post story doesn’t say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama’s opponents that if they just heat up the rhetoric and prey on people’s fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.
Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration’s efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would “give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen,” and insisting that military commissions are the “proper venue” for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts — these rights are, after all, enshrined in the U.S. Constitution.
And to call military commissions the “proper venue” is to suggest that they have a strong record for convicting terrorists — which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.
None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder “the real terrorists” and demanded their impeachment.
As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a “moral disgrace” that would allow terrorists to “spew their hate across America”?
Of course, most of those protesters know very little about the U.S. court system and how much more effective it’s been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama’s most adamant opponents, who’ve channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.
Perhaps that’s to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part — a message to his adversaries that if they just make enough of a stink about the decisions they don’t like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.
Update: The blogs are abuzz about today’s WaPo story. Here are a few noteworthy opinions on the controversy, from Deborah Pearlstein, Glenn Greenwald, Scott Horton and Marcy Wheeler. And a nice editorial from the New York Times on Lindsey Graham’s “assault on the courts and prosecutorial discretion.”
Update II: This post, from a 9/11 widow upset that Obama may not keep his word on the trial, is definitely worth a read.