Obama Administration Decision to Return KSM to the Military Courts

by Andrew C. McCarthy

The Obama administration’s decision to return the case of Khalid Sheikh Mohammed and the other 9/11 mass-murderers to a military commission demonstrates, yet again, that the American people can force reversals in bad government policy by protesting strongly against them.

Today’s reversal comes not because the administration wanted to abandon the push for a civilian trial. It comes because the president — as he not coincidentally announced today — is seeking reelection. Trying to force a civilian trial of the 9/11 attacks would doom that effort.

No one should be under the misimpression that today’s decision was made by the Justice Department, even if it is being announced by Attorney General Holder. From the start, the attorney general has been implementing President Obama’s policy — it was the president who, as a candidate, campaigned on returning the country to the pre-9/11 counterterrorism model that regarded al-Qaeda’s onslaught as a mere law enforcement problem.

That policy was a debacle. The American people want national security challenges treated like national security challenges, not like a crime wave. While public opinion regarding military operations in Iraq has been sharply divided, Americans strongly support a war footing when it comes to protecting our homeland from terrorist attack. 

Never in the history of the United States have our wartime enemies been invited into our civilian courts, clothed in the majesty of our Constitution, enabled by our due process rules to comb through our intelligence files, and given a platform to put our government, our troops, and our society on trial. Unless and until we devise a new system for prosecuting enemy combatant terrorists, military commissions remain the appropriate vehicle for war crimes trials. This is not a departure from the rule of law, it is the rule of law during wartime.

The shame here is that the decision announced today should have been announced in January 2009. That was when the Obama administration pulled the plug on the war crimes military-commission against Khalid Sheikh Mohammed and the other 9/11 jihadists at the very moment when they were prepared to plead guilty and move on to execution.

By that point, millions of dollars and three years of effort had been expended to make discovery, litigate pretrial motions, and prepare for trial. Now, because of the administration’s politicized dithering, the case will have to start again from scratch and the terrorists will be able to raise new legal challenges to the prosecution based on prejudice they will inevitably say this dithering and delay caused.

Fortunately, officials in the military justice system are highly competent and well equipped to handle these complications. It’s just a shame that they’ll need to do that.