The Obama administration’s announcement that Khalid Sheikh Mohammed and several other al-Qaeda operatives involved in planning the 9/11 attacks will be tried by military commission marks another step in the process whereby the president and his advisers are returning even to those Bush anti-terror policies about which they once were the most critical. Despite the president’s statements during his campaign and at the beginning of his administration, the detention center at Guantanamo Bay has not been closed and will — according to administration officials — remain open for the foreseeable future.
Civilian trials in federal court for captured al-Qaeda and Taliban terrorists were always unrealistic and inappropriate. These men are not simple criminal defendants but soldiers in a global war waged against the United States and its allies. They can and should be tried before military courts.
The administration’s reversal reveals a growing, if perhaps grudging, realization — based doubtless on access to the highest classified information and more than two years of fighting the global war on terror — that the Bush administration did not adopt these policies as part of some grand strategy to increase presidential power. Guantanamo, military commissions, the war on terror itself are policies embraced by the Bush administration because they were (and are) the only available options that stood (and stand) a fair chance of protecting the American people and their allies around the world from further terrorist attack.
It would, of course, be nice if the president would publicly acknowledge that he was wrong about these things. Politics being what they are, however, this is not very likely. However, if he has not already called former President Bush to make that acknowledgment in private, it is high time he did.
— David B. Rivkin Jr. and Lee A. Casey served in the Justice Department under Presidents Ronald Reagan and George H. W. Bush.