Tuesday, April 05, 2011

obama's options for the trial of detainees

plenty of people are blasting the obama administration for announcing that they will try khalid sheikh mohammed in a tribunal in guantanamo rather than in a civilian court. but the obama administration didn't really have a choice on this one. congress blocked funding of any civilian trials. the administration was faced with three choices:

(a) let KSM go;

(b) wait to see whether congress ever changes its mind and passes a law that would permit the funding of civilian trials; or

(c) try KSM at guantanamo.

i'm not so sure they didn't make the wrong choice. KSM should face a trial. there is evidence that he planned some pretty horrific attacks. congress is unlikely to change its mind any time soon and its highly unlikely they would permit funding before obama leaves office, so (b) is effectively indefinite detention without trial. that leaves (c).

if you read eric holder's announcement of the gitmo trial it's pretty clear that was his reasoning.
In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court.   I stand by that decision today.


Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.   As the President has said, those unwise and unwarranted restrictions undermine our counter terrorism efforts and could harm our national security.   Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch.   Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.   Yet they have taken one of the nation’s most tested counter terrorism tools off the table and tied our hands in a way that could have serious ramifications.   We will continue to seek to repeal those restrictions.
But we must face a simple truth:   those restrictions are unlikely to be repealed in the immediate future.   And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.   I have talked to these family members on many occasions over the last two years.   Like many Americans, they differ on where the 9/11 conspirators should be prosecuted, but there is one thing on which they all agree:   We must bring the conspirators to justice.
so to all those who slam the obama administration for yesterday's announcement, i ask them: what should obama and holder have done instead?

here is what i think they should do: create a tribunal with the same rights as any u.s. civilian court. just because congress has blocked them from transferring detainees to the mainland and holding a civilian trial in federal court, why can't the obama administration effectively create a mirror image of the civilian courts in guantanamo? george bush asserted that the executive branch has the right to create a military tribunal with whatever civil rights he saw fit. why can't obama use that very same executive authority to create a "military commission" presided over by retired federal judges, applying regular u.s. law and extending to them all the same rights that a criminal defendant would have in federal court?

the only one that i don't think they could pull off is the right to a jury trial, because there isn't a legitimate looking  jury pool on the military base. but they could give KSM and other defendants a bench trial. just because it's in guantanamo doesn't mean it has to be a kangaroo court.