Death Blow: The White House Sounds the Retreat on Trying KSM in Civilian Court
Dana Perino and Bill Burck
March 5, 2010


There’s nothing quite so satisfying as being proved right. We hate to say we told you so, but…

The Washington Post reports this morning that the president’s advisers will recommend that Khalid Sheik Muhammed be tried by military commission, not civilian trial. This leak from the White House means it’s all over for Attorney General Eric Holder’s dream, fueled by ideological fervor, of trying KSM in civilian court in downtown Manhattan. Weeks ago, we gave nine reasons why this turnaround would happen, here and here. One particularly important reason was the likelihood a federal judge would throw out the charges against KSM because the attorney general’s and White House’s extraordinarily prejudicial comments guaranteeing KSM’s conviction and execution deprived him of a fair trial. Once the White House fully appreciated just how disastrous the attorney general’s decision was, they shoved him aside and took over.

Anthony Romero of the ACLU tells the Washington Post that the White House’s decision will be “a death blow to [President Obama’s] own Justice Department.” Romero is half right — it is a death blow to the current Justice leadership and President Obama is partly to blame for allowing Holder to be in charge of the decision for a time. But let’s not forget the attorney general himself. With stunning arrogance, Holder imposed his will on New York without consulting the mayor or the police chief. After all, Holder doesn’t feel it’s necessary to consult with the intelligence services when a terrorist is captured trying to blow up an airplane, so why would he consult with mere local officials? Well, those local officials were more than Holder bargained for, and once they realized how expensive, disruptive, and totally unnecessary a civilian trial in New York would be, they told Holder to take his trial somewhere else.

The Post is also reporting that the White House is looking to cut a deal with Sen. Lindsey Graham to close Guantanamo in exchange for trying detainees in military commissions. As we have said before, we haven’t heard a justification for closing Guantanamo that would outweigh the huge downsides. Guantanamo remains the best place to hold these terrorists. Once they set foot on U.S. soil, they will acquire a whole set of rights to which they are not currently entitled — not to mention the security risks of turning the military base in the U.S. which would hold them into a prime target for al-Qaeda.

Once again, some will howl that the White House has a communications problem — but its real problem is one of policy. No amount of spin could make this story look good, but the White House will try to claim victory if they get a deal to close Guantanamo. But that would be “victory” achieved by PR stunt because that’s all closing Guantanamo would amount to — an appeal to the hearts and minds of jihadists and the far Left overseas, at the expense of common sense and our national security. And we’ve got a bridge to sell anyone who believes this crowd will fall in love with America once Guantanamo is closed.

nm

I think I detect a pattern here...now that Obama is about to make public the mother of all flip-flops on national security and reverse his decision to prosecute KSM in Manhattan.

President Obama, who was elected due to his anti-Bush credentials (no single factor contributed more to his victory IMO), has quietly adopted those policies he relentlessly attacked while running for office.

For nearly a decade, The Far-Left, along with Candidate Obama built an entire narrative that convinced many Americans that The Bush Administration was a nightmarish, civil liberties shredding, imperialist regime - from GITMO to FISA - every national security protocol was essentially deemed the root of all evil. And that was that.

As a result came the supposed destruction of our Constitution, our credibility with the international community, and ultimately, our safety at home. A large portion of this moral outrage was based on the waterboarding of three high profile terrorists between 2002-2003.

Couple specific questions:

The conventional wisdom of the day suggests that it's quite noble and just to prosecute former officials for waterboarding three confessed mass-murderers responsible for the deaths of thousands of American civilians, no?

Yet it's perfectly acceptable for current officials, according to our new moral standard, to order the assassination of dozens of suspected terrorists in the sovereign state of Pakistan, along with anyone else (family, friends) who happens to be in their immediate vicinity?

Keep in mind I'm not at all criticizing Obama's employment of such these tactcs but please tell me the Far Left, professor "moderate", and the rest have something honest to say on this sudden turnabout. If there was an endless stream of hysterical editorials, Sunday morning news panels, street protests, Leftist blog screeds, Congressional condemnation, (not to mention all the venom we saw on this board) railing against, eh hem, waterboarding no more than three terrorists, why no hysteria today surrounding the execution of hundreds of suspected jihadists who have not been afforded the right of a judge, jury, etc?

If you're wondeing why I continue to beat this drum, it's simply because it's apparent to anyone with an objective bone in their bodies that these folks really had no problem with the Patriot Act, Gitmo, drone assassinations, FISA, CIA rendition, etc. We know Congressional Democrats certainly don't/didn't - judging by the way they cast their votes. The person who presided over such things? I'm fairly certain this may have something to do with it...

Never had a problem with drone attacks and have said as much. It was you who got all hot and bothered on the issue during the Presidential debates.

So the question is why have you been silent about that until now by reversing your position?

Just as I suspected.

Waterboarding three high profile terrorists responsible for murdering American civilians is a supposed moral outrage of the decade.

Assassinating suspected jihadists from 30,000 feet in the sky, along with anyone near them, via predator drones is perfectly acceptable. That's consistent.

Uh, silent about what? Did you not read my post? I have no problem with the increase in drone attacks:

Yes today you are not silent. BUT DURING THE DEBATES you called such action wrong and it is in your posts. Sorry, you did change.

As far as the bombing them on the sites--have no problem with that. If they are captured, they should be afforded the rights we expect others to afford our citizens. Additionally, as the world's moral leader, we should also grant the rights we bestow on ourselves. That is what leaders do.

This is why I consider so many conservatives to be stupid. They don't even get the argument. Does Oscar Meyer run advertisements to convince vegans to eat meat? No, they run them to persuade those open to persuasion.

Terrorists need to be treated as criminals, because they are criminals. We do not need to legitimatize them as warriors or combatants. We should not give them special status that they do not deserve. They're just killers, murders and criminals. Period.

Islamic extremists who perpetrate crimes should be dealt with just like other murderers. We should not focus or obsess on what group they belong to publicly. We should not publicize their beefs, their complaints or their religious motivations. We should call them criminals and murders and not make them martyrs or a special, recognized breed.

They're just another anti-social murderer, in the end.

When we control our image and the narrative in the world, it will be because we were fair and didn't do anything but protect the innocent from violence. We lose the argument when we keep reminding the world that these were Muslims. We win when we show the blood they shed of innocents. End of story.

Feel free to respond, but you are wrong if you think we're trying to reason with terrorists. We're simply trying to remind the vast majority of Muslims that our only real battle is with murderers and criminals, just like them.

I tried that argument already. Well, except for the stupid part.

Huzzah ....

Here's the other major point that prevents me from getting on board with the military tribunal argument.....we tried Richard Reed and Zacarias Moussaoui in Federal Court and I didn't see anyone kvetching about that. So where's the line?

So, pcf, since you believe they are merely criminals who should be accorded every benefit of our judicial system, then how can you possibly condone the killing of dozens of "criminals" by the Obama administration?

Shouldn't you be screaming about their civil and due process rights being violated?

I'll kvetch. They should both be in guantanamo.

How many people do the police and various other agencies within the US borders kill a year? How many of these killings are "screamed about" because they are patently unreasonable? Some small percentage, true, but often those particular ones are in fact patently unreasonable. Who, exactly, "screamed" about the killings of Dillinger? Ma (who likely wasn't the serious criminal she was reputed to be) and Fred Barker? Bonnie and Clyde?

They're both at the Supermax prison in Colorado. I think they're in good hands.

Thanks for proving my point.

Those criminals are engaging our military. Reed, Undie Bomber, and KSM killed or attempted to kill American civilians. That's one distinction.

What has always bothered me about Gitmo isn't how they were treated but the fact that some number of them have been indefinitely detained on the basis of being soldiers in a war that will never end. Terrorism will never go away. It existed before 9/11. It will exist even if pro-Western democracies succeed in Afghanistan and Iraq. And I do believe that they have a right to defend themselves against a punishment of being detained indefinitely. We don't detain drug lords or cartel assassins indefinitely without trial because we are in a similar nebulously defined "War on Drugs." And I'd argue those dudes are every bit as dangerous, if not more, than your average Islamic Militant.

Depends on the grey area we are operating in. Personally, I think we need a grey area that remains somewhat fuzzy.

For the record, I don't care much which way they go with trials. I think you use the most appropriate system available and give those held a trial ASAP. I am not against military tribunals, but neither am I against criminal trials if possible.

As for what happens overseas, I think targeted killings of terrorists are a grey area that must continue to exist and that you cannot apply the Bill of Rights to in the way we should within the US.

My point is basically that we shouldn't sully our reputation with a permanent problem like Guantanamo or a rigid legal system when we can operate more effectively in relative silence or under normal procedure.

And now you understand the dilemma. There is no perfect answer.

Nice backtrack, by the way. Your response is inconsistent with your original wrt them being defined as criminals.

Don't think so...unless your point was that he actually was screaming about such things.

The second point is, setting up a rhetorical straw man of what someone MUST believe (when he clearly does not) and then arguing they should not believe such things is perhaps not the best way to come to the best sorts of understandings.

Targeted killings happen. Dillinger is a good example domestically given the bit overdramatized movie of late, but there are plenty more historically. In the end it is the effects on the affected surrounding populations that matter. Do it wrong, you generate lots more bad guys and do far, far more harm than not doing the targeted killing. Do it right and even the close neighbors don't rise up significantly and may even come out of their hiding closets to support you.

No, they are criminals. However, not everything happens by the book, especially if there is no book. Each agency involved needs internal rules for engagement, but if it is a grey area, keep the volume on mute.

I'm not in favor of having a rule for everything. We need to have values and wisdom and guidance from leadership, but we also do not need to box ourselves into details that have nothing to do with justice or good response.

I honestly have no idea what this is in reference to. None. I called what "such action" wrong? And during what "DEBATES"? Be specific and feel free to quote me.

Get this moral logic:

If we happen to not kill self-confessed terrorists and merely capture them, we enter into a sort of judicialized warfare and afford them the rights of our own Constitution. If we are unable to capture suspected jihadists, well, blowing them to smitherines is the ethical alternative that should draw no criticism whatsoever.

As I read recently, a Hellfire missile targeted at a jihadist who has not been given notice or an opportunity to be heard is an extremely prejudicial termination of his due-process rights.

Air tight as always counselor.


pcf dazzles the mind by both not answering the very simple question in my original post and smearing "many" conservatives at the same time.

Of course what's hillarious is that the Obama Administration has decided to treat terrorists as, well, terrorists. But of course that somehow doesn't make him "stupid"? This of course goes back to my original question - which, predictably, was never answered.

It's almost as if he has no idea of what he's responding to.

He states we're trying to remind the vast majority of Muslims of our "real battle."

How? By continuing (or ramping up) the "horrific" Bush policies that the international community spent years condemning which basically sends the message that I, Obama, am no different than George Bush? Wait a second....

I'll get to the rest of the responses later. Again, none of which directly address my original question.

That's right...and any "orchestrated" effort to engage our military has to be defined as war, not merely crime, especially when it happens on foreign soil. But what I was actually referring to was STL's initial example of predator drones. To my knowledge, those drones (under both Bush and Obama) have been used to kill people who weren't even within firing distance of any of our servicemen. It is not possible to know if all of these people are guilty or innocent. So the question is, as STL has posed, how in the world is killing them a moral act, but detaining them in Gitmo or subjecting them to a military tribunal are not...

Besides, are we really sending our troops over there to fight crime? If so, then why aren't they arresting hookers, gamblers, embezzlers, drug dealers, human traffickers, etc. and bringing them back to our courts?

This raises an interesting question. If foreign terrorists aren't military combatants, but merely criminals, and they should be treated purely as criminals, doesn't transferring them to US soil automatically take them out of military jurisdiction?

Federal law, under the Posse Comitatus Act, prohibits the use of US military forces to act in a law enforcement capacity within the United States, except where expressly authorized by the Constitution or Congress. The only exceptions are the Coast Guard during peacetime (as in drug smuggling enforcement) and the National Guard when acting under state, not federal, authority (as in when called up by a Governor for riot suppression).

That being the case, how can we transfer foreign prisoners from Gitmo to the United States and still try them under military tribunals?

But smearing broad swaths of people by calling them names is perfectly acceptable. Just don't dare try to call an individual a name.

Of course, wait til someone calls an ethnic group or sexual preference group a name and you'll get whiplash from pcf's about face on this issue.

I'm not saying there isn't a great deal of moral ambiguity, as with any conflict throughout history. But I think we have to recognize that this conflict isn't like any conventional "war" we've ever fought before and it isn't like any other international criminal activity we've seen before. It's somewhere in between. And the debate we're having is where the rules of engagement and enforcement should be.

The drones in of themselves are certainly morally ambiguous. But the battlefield is there, they engaged us by attacking our soil, and while there, I think in so far as what's going on over there simulates "conventional" warfare, those rules apply. Have visual intelligence that a bunch of bad guys are in a shack outside a village on the Pakistani side of the border ... it'd be nice to get Pakistani approval, but missing that opportunity will cost future lives. As long as we can do so without taking out a school or apartment mostly full of civilians ... take it out.

But when it comes to detainment, again I don't think we can treat this like conventional warfare. Because there is no entity to capitulate or surrender. There is no way to believe that people who want to do bad things to the US will cease to be. This will end when we decide the costs of the conflict exceed their ability to do harm to us, not when someone surrenders. This "war" could go on for decades more, if not in Afghanistan, then Yemen or Somalia or Sudan or the next place they take up shop. So is it morally proper to detain them in perpetuity? Personally, I don't think so. Prove they did what they did ... prove they will likely try to kill Americans again ... and put them away. Gitmo, Supermax, Old Sparky I don't care where. But I think it's highly likely that we've detained people who were in the wrong place at the wrong time. Do they deserve to waste the rest of their lives in Cuba? Don't they deserve a chance to prove their innocence?

As a country, we have a system of morality that is based on the belief in inalienable human rights, and I don't believe those rights ... life, liberty, pursuit of nookie ... were intended just for American citizens as they were Endowed by our Creator.

Lemme see if I can reel this thread back in because the intent here was to spark dialogue that directly addressed my original questions, not to debate tangential legal hot buttons that have been discussed on this board before.

Nevertheless, I'll try and take each response one by one:

"We tried Richard Reed and Zacarias Moussaoui in Federal Court so why military tribunals?"

Well, again, my intent wasn't to assess the pros and cons of military commissions (we've gone down this road many times in the past) but while we're on the subject, why is no one out for Obama's head, since he has and continues to utilize them, as Congress has legally authorized? (see USS Cole bombers).

Secondly, there were no military commissions in place at the time Reid was captured. As I've stated before, Bush had given the authorization to the DOD but they had not been instituted yet. Therefore, our criminal justice system was the only option at the time. If you're interested, a great commentary can be found here.

Also, regarding Moussaoui, many people in fact thought he was the poster child for military commissions. The entire episode was a circus and, essentially, a sentencing hearing, not an actual trial designed to determine guilt.

Again, maybe there is a line, but my question isn't to assess tribunals themselves, it's to discover the reasoning behind the current silence of Bush's critics as Obama continues this and every other national security protocol from the Bush era.

"The problem with GITMO is indefinite detainment of enemy combatants."

This perfectly illustrates the rampant hypocrisy of the Obama Administration - and the current hush of Bush Administration critics.

Eric Holder via Andy McCarthy in 2002:

"We are in the middle of a war," and thus that captured terrorists should be detained without trial as "combatants." He explained that under governing "precedent,"we could "detain these people until the war is over." And Holder was emphatic in rejecting the claim that al Qaeda had Geneva Convention rights: "One of the things we clearly want to do . . . is to have an ability to interrogate [terrorists] and find out what their future plans might be, where other cells are located."

Also while, while the Supreme Court ruled in Hamdi v. Rumsfeld that "indefinite detention for the purpose of interrogation is not authorized" it also said in the same case that detention for the purpose of neutralizing an unlawful enemy combatant is permissible and that the only right of such a combatant -- even if he is a citizen -- is to challenge his classification as such a combatant in a habeas corpus proceeding.

Again, not particularly interested in discussing the legality of GITMO/indefinite detainment, just want to better understand the "horrific under Bush, don't care under Obama" double standard.

"They are criminals."

So we're ramping up targeted assassinations of common criminals (and their families) who have not been questioned, tried, convicted? And remember, Moussaiu was a member of Al Qaeda (we are at war with this organization) and a French citizen who was in the U.S. illegally while planning 9/11.

This affords him United States Constitutional rights?? Because he happened to physically be on our soil while plotting an attack, rather than plotting said attack in a safehouse in Yemen? What planet are we living on?

Meanwhile, pcf's in favor of having a rule for everything...unless of course it's a "grey area." If this wasn't so deranged, it'd be funny.

At the end of the day - there is no reasonable explanation for the monumental hypocrisy of Bush Administration critics, including then Sen. Obama, who positvely exploited this six-year long temper tantrum that, astonishingly, continues still today.

• The Patriot Act reauthorization two weeks ago? Yawn.
• Promises to close GITMO (aka the "Gulag of out time)? Never heard of it.
• Military Commissions enacted? Double standard? What double standard?
• Extraordinary rendition (aka "torture by proxy")? Move along. Nothing to see here.
• Immediate withdrawal from Iraq? Snooze.

The Far-Left narrative of Bush era protocols continue - just like President Obama's implementation of them.

I can accept some deviations and ambiguity in particular cases based on the decisions of prior administrations and the particulars of each case. There is no and can be no standard that fits every case, in particular when the policy is in the process of being changed.

Closing Gitmo is both a decision and a process. I agree with the decision, I understand the process. Perhaps a less politically biased version of yourself would understand as well, even if you disagreed.

How and where they try the cases is another area that I wouldn't expect a very abrupt change in all pending cases. It simply isn't logical. Obama or Bush may set a direction, but there's no way they can be free of precedent or of creating precedent to be challenged.

The Presidential debates in 2008 in which you chastised the decision that President Obama said if we have actionable intelligence of terrorists in Pakistan we will go get them or kill them. You criticized the decision as violating the sovereignty of a foreign country. Which at the time I thought that would be the exact opposite of the response I thought people like you would make. But, you are so dog gone partisan that it should not have surprised me. I did a search and I could not find any of the topics on the debate where the conversation occurred.

As for the rest, yes if we kill them on the battlefield then no issues. If civilians are killed, so what! They are in the area of terrorists by giving them aid and comfort. That does not mean we shoot and let God sort them out. We do try and limit civilian casualties, like the engagement rules, but it should not stop us from completing the mission when possible. See, the world isn't all black and white which you like to peg the issues.

If we do capture them then we should do the moral right thing and treat them as criminals once we got them back at base. Once there, the rights we grant US Citizens and other foreigners on our soil are the same judicial protections we cherish and promote around the world. You do not like that, but I bet you would be the first to cite those rights if you were arrested. That should be no different than foreigners on our soil, which is what our bases are classified as, our soil.

You're wrong. Unequivocally. I have neither criticized Obama nor Bush for moving on actionable intelligence within Pakistani territory. Never. Which is probably why you can't come up with suppoprt of it.

As for the rest of your post, you didn't come close to addressing my original question. My response above sufficiently addresses all the points made in this thread.

I cannot come up with ANY of the posts on the debate-period. The fact that I cannot find it does not mean you did not say it. Listen, you changed your tune now, which is great. But, then you had a different tune because of politics. Fine, fair enough but that does not negate the truth of what you said then.

I did address your questions. The fact of the matter is that it doesn't jive with what you want which are black and white responses that you can attack.

You two really need to think about consummating this relationship of yours......

Well, yeah, but that did allow them to win the White House....and isn't the destruction of the U.S. worth it? After all, the ends justify the means....it's the credo of the left. Do they really care about the long term damage they did, and are doing, to the moral fiber and position of the U.S. in the world? Naaah.

My man, I'm not going to sit here argue with you about some quote you're misattributing to me - particularly when you can't provide a lick of evidence to support it...gotta say though - of all the positions that have been ascribed to me, asserting that I opposed predator missile strikes is certainly one of the most surprising if not completely implausible ones. I'll throw it out to the group and see if anyone recalls me voicing my opposition to drone attacks. I literally laughed out loud when I read that one...

Anyway, when the smoke clears and the dust settles, the hypocrisy of the Far Left remains.

Predator drone attacks, FISA, GITMO, wiretaps, CIA rendition, military tirubunals -- all eggregious Constitution-shredding criminal acts under the supervision of the evil and hated cowboy, George W. Bush. All of which currently draw hardly any attention now that Obama has decided to continue them all - full steam ahead.