The Transparent Cowardice of Giving Up on Civilian Trials

Greenwald and the Washington Post break the bad news that the White House, sub silentio, may have finally given up on civilian trials for Khalid Sheikh Mohammed and other high level accused terrorists:

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters. . . .

We say “accused” because absent a conviction, that’s what they are. Guilt is a legal construct, and although logic and evidence support the conclusion that KSM will one day bear that label, absent a court’s order, “accused” is all that we can call him.

The highlighting is Greenwald’s. To be clear, political opposition should not weigh into an administration’s decision about whether and how to comply with constitutional law, but here, especially, politics should play no part. The trial of executive detainees is an executive decision. No legislator can stop the President from trying KSM in a federal court, and no executive appointee can stand in the President’s way. Legislators and state officials can (and should) make noise if it will help them keep their jobs. I’m disappointed in Cuomo for opposing a trial in New York, but ultimately, this signal is costless, because the decision is not his in any meaningful way.

Because other politicians can distance themselves from Obama, the President’s role as party leader, responsible for crafting a moderate and appealing message, should not weigh on him. His only obligation is to faithfully execute the laws. The failure to promptly try detainees (where possible) in American courts will represent a dereliction of that first duty.



  1. So the question follows: why?

    1. Why what? Sorry, wasn’t by my computer most of the day yesterday…

      1. Why is the President laying down on this one?

      2. Ah. Probably to protect his party and circle the wagons. But that’s bad calculus.

    2. Bad political calculus has certainly been the halmark of this administration.

      1. And over-generalizations, that of the opposition!

        1. I don’t think it’s an over-generalization. I’ve been amazed at the disconnect between the WH and the political landscape. Just one example, they are planning on pushing for immigration reform in the next 2 years. WTF?

        2. There’s some art to that. The last time this was attempted, it drove a wedge between the sides of the conservative movement.

      2. That was before you had 10% unemployment. I mean seriously, do you REALLY want to be talking about guest workers when 1 in 10 Americans are out of work?

        1. when you consider that many of those one in ten Americans were let go by larger corporations who are still enjoying record profits . . . and that the illegal immigranmts are often working in jobs at the lowest end of the economic scale which are not generally occupied by American citizens . . . yes, we need to talk about it. Economic reforms, and recovery from the recession will not be wells erved by ignorin gthe economic impact of the loss of that part of our workforce if immigration reform is not carried out.

          1. I’m not sure I follow what part of the workforce you think we are going to lose?

  2. I disagree that guilt is a legal construct… or at least that it’s not both a legal construct and an objective quality.

    1. Of course that’s wrong, though. The fact of guilt is something real, but not something that attaches in a meaningful manner without the legal construct.

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