Obama Caves on Civilian Trial for KSM
It turns out indefinite detention isn’t so bad after all.


Andrew C. McCarthy

Let’s review the state of play, shall we?

Throughout the 2008 presidential campaign, candidate Barack Obama blasted the Bush administration’s decision to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay. Now, two years into his presidency, Obama has decided to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay.

The media is reporting that the administration will hold Khalid Sheikh Mohammed and the other 9/11 plotter indefinitely, granting them neither a civilian nor a military trial. This determination, leaked over the weekend, appears to be a rebuff of Attorney General Eric Holder, who had intimated a few days earlier that a civilian prosecution was imminent.

Here’s the difference between Presidents Bush and Obama: The former’s strategy was driven by weighty national-security concerns and maintained despite ceaseless condemnation from the Obama Left. Obama’s strategy — or, more accurately, his drift — is driven by naked political concerns, and his base’s media megaphone has gone nearly silent.

After the most devastating attack ever carried out on American soil by a foreign enemy, President Bush determined that the Clinton administration’s preferred strategy of treating al-Qaeda as a mere law-enforcement problem had been unserious. The criminal-justice system is tailored to address ordinary crimes committed in peacetime America. It is designed to favor the defendants: Americans are presumed innocent and armed by the Constitution with protections that, quite intentionally, make it difficult for the government to investigate, prosecute, convict, and incarcerate. By itself, civilian justice is incapable of neutralizing wartime enemies. Unlike everyday crooks, foreign terrorists operate from overseas redoubts where American law does not apply, where foreign regimes like Iran and the Taliban are only too happy to abet them.

This is not hypothesis; it is our experience. The Clinton Justice Department indicted Osama bin Laden himself in June 1998. He responded by orchestrating, with impunity, the August 1998 embassy bombings in eastern Africa, the October 2000 Cole bombing, and the 9/11 attacks. Al-Qaeda’s onslaught was a war, not a crime wave. President Bush was hardly alone in thinking so: Congress overwhelming authorized combat operations against al-Qaeda, and it has continued to authorize and fund them for nearly a decade. Combat operations necessarily imply not only the killing of enemy combatants but their capture and detention, with the corollary of military-commission trials for those who have committed provable war crimes.

The Bush strategy has worked. Its detractors among self-styled “human-rights activists” — who seem far more concerned about the humans doing the killing than the humans doing the dying — point to the spotty record of commission trials in contending otherwise. But commissions constitute only a small element of the Bush approach, and doubtless the least important one.