Over a year ago on this site — see About (Saving) Face, and A Ninth Reason Why KSM Will be Tried by Military Commission — and in other publications — see Why KSM Will Never Get a Civilian Trial, from the New York Post February 3rd issue — we predicted that KSM would never be tried in civilian court and would instead end up facing a military commission at Guantanamo. We admittedly were off about the timing when we said that the end was near back in January 2010. But we were right about the outcome…and the excuses Attorney General Eric Holder would use to justify this wholesale reversal.
Predictably, Holder is blaming Congress. This was #6 in our reasons for why KSM would not end up in civilian court. Holder goes even further than we expected, though, by saying that he knows better than Congress and if it weren’t for those interfering legislators, the original decision would have stuck.
Don’t believe it for a minute. As we explained last year, the administration has many reasons to reverse course — not the least of which is that the Attorney General himself made numerous unwise statements presuming KSM’s guilt rather than his innocence and his inevitable conviction, big no-no’s in civilian court which can get a case thrown out because of unfair pre-trial publicity. The administration’s calculus proved pretty straightforward — the risks to public safety of holding the trial in downtown Manhattan, combined with the possibility that some evidence against KSM might be inadmissible in civilian court or that his indictment might even be thrown out, vastly outweighed vindicating the principle that even enemies of the United States should be tried in civilian court, a principle that even stalwarts of the Left like Senator Chuck Schumer reject. In the end, pragmatism took precedence over ideology.
The Attorney General badly miscalculated when he announced a civilian trial for KSM back in November 2009. He knows it, the administration knows it, and Congress knows it. He is fixing the mistake under the guise of giving into political pressure from Congress. No one should be fooled.