Well, well, well. What do we have here?
When Attorney General Eric Holder announced the Justice Department’s plans to try KSM in civilian court in Manhattan last November, we were skeptical — both that the trial would really take place in Manhattan, and that Holder had really made the decision, as the administration claimed, with no input from the White House. As we recommended he do back then (but were pessimistic would happen), the president has overruled the attorney general and taken over the process. According to the Washington Post, Obama is now going to get personally involved in finding a new venue for the KSM trial.
The ham-handed announcement of the trial’s coming to NYC was met with enthusiastic rejection across the board (even politicians who initially supported the idea, such as New York State senators Chuck Schumer and Kirsten Gillibrand and New York City mayor Michael Bloomberg, wisely flip-flopped). Plus, as we have discussed before, the administration has made, and the president’s chief spokesperson continues to make, extremely prejudicial comments about KSM’s guilt and supposedly inevitable execution, which undermine KSM’s right to a fair trial in civilian court.
The administration won’t be able to afford the disastrous politics, not to mention the major injustice to the victims and to all Americans, if a court throws out the case because of these comments. Federal judges don’t take kindly to show trials. Neither do military judges, but the law on prejudicial pre-trial comments is better for the administration in the military setting.
We predicted last month that KSM would get a trial — by military commission. The administration is sending out every signal it can that this is where the situation is heading, with or without Attorney General Holder’s agreement. This is a smart decision. It is also smart for the White House to negotiate a path forward with Sen. Lindsey Graham, as is being reported. Senator Graham is strongly opposed to civilian trials for KSM and other foreign enemy combatants, but he is willing to work with President Obama on his goal to close Guantanamo. The devil will be in the details of any deal they reach — and we are skeptical that closing Guantanamo is wise or even politically viable. But it’s a good sign that the pragmatists — and not the administration’s ideologues — are now talking about a solution.
The White House took our advice to take over the process. Some more unsolicited advice: Rip the Band-Aid off, and set aside completely the idea of civilian show trials for foreign enemy combatants such as KSM. That will make it much easier to work on a bipartisan solution to the Guantanamo question.
Also, consider the notion that the solution to the Guantanamo problem is to start telling the truth about conditions there. It is a much better facility than most prisons in the U.S., and the military gives the detainees far more freedom than the Justice Department’s Bureau of Prisons, which runs federal prisons, would. Their greater freedom at Guantanamo is possible largely because the prison is in a secure location away from civilian populations, and the detainees are separate from run-of- the-mill criminals — who might harm them, whom they might harm, or whom they might recruit into al-Qaeda. Instead of closing Guantanamo, maybe we should be honest about it.
— Dana M. Perino is former press secretary to Pres. George W. Bush. Bill Burck is a former federal prosecutor and deputy counsel to President Bush.