Attorney General Eric Holder said the decision over where to hold the trial for alleged 9/11 plotter Khalid Sheikh Mohammad was “weeks away” — three months ago.
Now advocates on both sides of the issue say they expect the Obama administration to punt the decision until after the November midterm elections— when the controversial plan could do less damage to the political fortunes of endangered Democrats and might face less resistance on Capitol Hill.
Holder last week explicitly denied the midterms had anything to do with the timing but would only say discussions are continuing. The White House had no comment.
Any further stalling could pose a serious political problem for President Barack Obama on the left – where advocates cheered his administration’s plan to break from the Bush administration and give top al-Qaida figures trials in American courtrooms, a sign to the country and the world that U.S.-style justice was enough to try to men accused of the worst crimes in the nation’s history.
The White House already signaled that it's dumped Holder's plan for a 9/11 trial in Manhattan after a firestorm of local opposition. But it's still unclear whether Obama will OK a civilian trial elsewhere – or move toward recently revamped military commissions, where the rules of evidence are different and the legal procedures largely untested.
To many, such a move would make Obama’s approach largely indistinguishable from President George W. Bush's handling of the 9/11 cases.
Advocates say the signs of foot-dragging are evident. The Democrats’ political fortunes have dipped further, talks on the broader issue of Guantanamo closure have ground to a halt and the House took a little-noticed vote to block transporting any Gitmo detainees to the United States, for any reason.
That measure passed last month by an overwhelming majority, a clear warning shot that Republicans – and even some Democrats – are prepared to fight Holder’s plan if he continues to push for civilian trials, a roadblock that by itself could be enough to squash any short-term announcement.
“The worst possible outcome is not making a decision….There’s a genuinely weird paralysis I would not have predicted,” said Ben Wittes, a Brookings Institution scholar who has urged Obama to announce that there will be no trials for the 9/11 suspects. “It’s disgraceful and they should be embarrassed by it. There are pros and cons of any approach you take, but there is no good argument to let this fester indefinitely.”
Tom Malinowski of Human Rights Watch, an advocate for civilian trials, said a delay until November or later now seems almost inevitable. “I have assumed for some time that that’s the decision,” Malinowski said. “There was a period earlier this year where they were indeed struggling to make this decision—and the sounds of struggle have ceased.”
While “swift and certain justice” once was a regular part of the White House lexicon on Guantanamo and detainee trials, that catchphrase has now vanished along with the prospect of anything swift happening to most of the prisoners slated for continued detention or trial.
“Both the 9/11 and the Cole families had the president look them in the eye and say, ‘We’re going to close Gitmo, move forward with this process, and hold people accountable,’ ” said Commander Kirk Lippold, a proponent of military trials who was the commanding officer aboard the U.S.S. Cole when it was attacked in Yemen in 2000.
“When does an unfulfilled political promise become a lie?” Lippold asked.
Defense sources say a military commission for the alleged mastermind of the Cole bombing, Saudi Abd al-Rahim al-Nashiri, put on hold by Obama after he took office could ramp up again at Guantanamo late this summer.
In November, Holder announced his plan to try KSM and four other accused 9/11 plotters in Manhattan. However, when local leaders backed away from that idea in January, the White House pulled the plug and announced it would review other options for resolving the cases.
In March, Holder expressed optimism that a resolution would be arrived at quickly.
“I think that we are weeks away from making that determination. I don't think we're talking about months,” Holder told a House appropriations subcommittee on March 16. White House officials also endorsed the “weeks” frame.
Asked last week if a decision had been made to put off the issue until after the elections, Holder said: “No decision has been made with regard to where the trials will be held, but the conversations that we are having are ongoing, and the political thing that you mentioned, the fact of the elections, is not a part of the conversations at all.”
However, the political attractiveness of delay for Democrats is pretty straightforward.
“It deprives [Republicans] of a cheap 30-second spot about moving the most dangerous people in the world to U.S. soil. On the other hand, it makes Democrats look like they can’t handle the issue,” Malinowski said.
Part of the delay on 9/11 trials has been caused by the White House’s desire to explore what some call a “grand bargain”— one bill or a series of measures that would bring about Guantanamo’s closure by providing money for a prison at Thomson, Ill.; authorize bringing current Gitmo inmates there; overhaul the rules for detaining the prisoners; and likely involve green-lighting a military commission trial for the 9/11 prisoners and civilian trials for others.
Earlier this year, White House Chief of Staff Rahm Emanuel and White House Counsel Bob Bauer had detailed talks with Sen. Lindsey Graham (R-S.C.) about such a compromise. But in the last couple of months the White House has “gone dark,” a Congressional source close to Graham said.
“They [the White House] can’t figure out what they want to do,” the source said.
Some reports have suggested that most White House officials have sided with Emanuel, who is said to favor military trials. However, at meetings with human rights and civil liberties groups earlier this year, White House Office of Public Engagement Director Tina Tchen strongly hinted that Obama is inclined to back civilian trials if the practicalities can be worked out, a source said.
While there is clearly significant resistance in Congress to civilian 9/11 trials, lawmakers haven’t tied Obama’s hands on the issue—at least not yet. When Graham forced a Senate vote last November on blocking such trials, the measure failed, 54-45. But then there was the underwear bomber, Scott Brown’s victory in his Massachusetts Senate campaign in part on an anti-civilian trial message, and, last month, the Times Square car bombing attempt.
Of course, Obama could veto any legislation sent to his desk that ruled out civilian trials for the 9/11 suspects or anyone else at Gitmo. But that would put the terrorism issue at the center of national political debate—something the White House has assiduously tried to avoid. Since delivering a speech on the issue of terrorism suspects at the National Archives 13 months ago, Obama has been nearly mum on the issue.
Still, the House bill may prove a significant obstacle. As members rushed to leave for the Memorial Weekend, the House adopted a motion by Rep. Randy Forbes (R-Va.) that would effectively bar the transfer of any Gitmo prisoner to U.S. soil. In the 282-131 vote, Democrats defected en masse, with 114 backing Forbes’s motion.
The plan to close Gitmo also is stalled. At a press conference in Chicago last month that received little national attention, Sen. Dick Durbin (D-Ill.), who favors moving Gitmo detainees to Thomson, Ill., seemed to concede that movement on the issue wouldn’t come anytime this year.
“We have to resolve that Guantanamo issue at another time,” Durbin said, according to a video posted on the Fox News website. Asked if that meant “a non-election year,” Durbin replied: “Well perhaps it’ll be easier. That’s a pretty cynical view—and very accurate.”
Others say that while a delay lowers the profile of the issue of a trial for KSM and his cohorts, it doesn’t sweep it off the table.
“I think they want to take it off the table in the election, then they want to sneak it in or think we’ll have a different playing field or people will have softened on this,” said Debra Burlingame, whose brother was an airline pilot killed aboard one of the 9/11 flights. “We are not going to go away.”
Some analysts, such as Malinowski, surmise that the protracted delay signals that the White House may well opt for civilian trials in the end, since there would be little political downside to announcing a move to military commissions now if that were the decision. Others say that after eight years of frustration another six months of delay isn’t a big deal.
“I think a civilian trial of Khalid Sheikh Mohammed is in the best interests of the United States and I’m prepared to wait for it,” said Ken Gude of the Center for American Progress.