Obama Caves on Civilian Trial for KSM

It turns out indefinite detention isn’t so bad after all.

Andrew C. McCarthy
Tuesday, November 16, 2010

Let’s review the state of play, shall we?

Throughout the 2008 presidential campaign, candidate Barack Obama blasted the Bush administration’s decision to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay. Now, two years into his presidency, Obama has decided to treat al-Qaeda terrorists as enemy combatants and detain them without trial at Guantanamo Bay.

The media is reporting that the administration will hold Khalid Sheikh Mohammed and the other 9/11 plotter indefinitely, granting them neither a civilian nor a military trial. This determination, leaked over the weekend, appears to be a rebuff of Attorney General Eric Holder, who had intimated a few days earlier that a civilian prosecution was imminent.

Here’s the difference between Presidents Bush and Obama: The former’s strategy was driven by weighty national-security concerns and maintained despite ceaseless condemnation from the Obama Left. Obama’s strategy — or, more accurately, his drift — is driven by naked political concerns, and his base’s media megaphone has gone nearly silent.

After the most devastating attack ever carried out on American soil by a foreign enemy, President Bush determined that the Clinton administration’s preferred strategy of treating al-Qaeda as a mere law-enforcement problem had been unserious. The criminal-justice system is tailored to address ordinary crimes committed in peacetime America. It is designed to favor the defendants: Americans are presumed innocent and armed by the Constitution with protections that, quite intentionally, make it difficult for the government to investigate, prosecute, convict, and incarcerate. By itself, civilian justice is incapable of neutralizing wartime enemies. Unlike everyday crooks, foreign terrorists operate from overseas redoubts where American law does not apply, where foreign regimes like Iran and the Taliban are only too happy to abet them.

This is not hypothesis; it is our experience. The Clinton Justice Department indicted Osama bin Laden himself in June 1998. He responded by orchestrating, with impunity, the August 1998 embassy bombings in eastern Africa, the October 2000 Cole bombing, and the 9/11 attacks. Al-Qaeda’s onslaught was a war, not a crime wave. President Bush was hardly alone in thinking so: Congress overwhelming authorized combat operations against al-Qaeda, and it has continued to authorize and fund them for nearly a decade. Combat operations necessarily imply not only the killing of enemy combatants but their capture and detention, with the corollary of military-commission trials for those who have committed provable war crimes.

The Bush strategy has worked. Its detractors among self-styled “human-rights activists” — who seem far more concerned about the humans doing the killing than the humans doing the dying — point to the spotty record of commission trials in contending otherwise. But commissions constitute only a small element of the Bush approach, and doubtless the least important one.

The Bush strategy’s key components are twofold. First: Kill, capture, and defund terrorists overseas, thereby denying them safe haven and taking them out before they can act. Second: Detain those who have been captured both to maximize the potential for acquiring fresh intelligence and to thin out the ranks of highly trained jihadists. The enemy may be able to replace terrorists who have been captured or killed, but the new recruits cannot replicate their level of competence.

It is a sad fact that the tireless, heroic work of our military continues without our paying it much mind. It is thus common for Americans to look at all our patent vulnerabilities — subway systems, power grids, sports stadiums, etc. — and wonder: “Why haven’t there been more 9/11s?” But this is no mystery. Dead and detained jihadists cannot execute attacks. A terror network worried about drone strikes on its training camps does not have the luxury of taking the months it takes to plan and execute significant plots. Fresh intelligence from high-level captives disrupts plots in addition to making it extraordinarily difficult for al-Qaeda to embed capable cells in our homeland.

While President Obama has gradually and grudgingly made the Bush strategy his own, he lacks the grace to say so, much less to give his predecessor credit. But it is remarkable to consider how far Obama has come. In June 2008, with the campaign in high gear, he ripped Bush, complaining that

in previous terrorist attacks [such as] the first attack against the World Trade Center, we were able to arrest those responsible, put them on trial. They are currently in U.S. prisons, incapacitated. And the fact that the administration has not tried to do that has created a situation where not only have we never actually put many of these folks on trial, but we have destroyed our credibility when it comes to rule of law all around the world.

This critique was astonishing in its ignorance. In most previous terrorist attacks, we had not been able to arrest those responsible — they had been able to keep attacking. Even in the one example Obama cited, the 1993 WTC bombing, several of those responsible were able to flee because civilian due-process protections made it impossible to hold them. Some were never apprehended — and KSM, who was complicit in the WTC bombing and several subsequent plots, was finally captured thanks to wartime operations, not law-enforcement protocols.

Moreover, detaining enemy combatants without trial is entirely consistent with the “rule of law” that applies in wartime. Indeed, the Obama Justice Department has found itself making just this argument, albeit without fanfare. In short, indefinite detention at Gitmo “destroyed our credibility” only with Bush-deranged leftists — and isn’t it amazing how credulous they’ve suddenly become now that their guy is accountable?

In his conclusion, candidate Obama leveled the charge — oft-repeated but mindless — that Bush counterterrorism had “given a huge boost to terrorist recruitment in [Islamic] countries that say, ‘Look, this is how the United States treats Muslims.’” Let’s put aside the now-familiar Obama crotchet that gives Muslim sensibilities pride of place over American security concerns. The brute fact is: Obama is treating Muslim terrorists the same way Bush did. Given that, is it too much to ask the president finally to acknowledge that terrorist recruitment is driven by Islamist ideology? The legal theory by which a president justifies the indefinite detention of terrorists is beside the point.

For those who maintain that our president is a pragmatist and not an ideologue, worth pondering is Obama’s ideological intransigence, and how it has bred incompetence. If, back in January 2009, Obama had just let the then-pending military commission go forward, KSM and his cohorts would likely have been executed by now. They had announced their intention to plead guilty and proceed to sentencing. Allowing that, however, would effectively have meant endorsing military commissions and, by extension, Bush counterterrorism. So the new president interrupted the proceedings and dangled before KSM the stage the terrorist had always craved: a civilian trial just a few blocks from Broadway.

The public revolted, prompting bipartisan congressional opposition. Meantime, the president came to realize that, regardless of his purple campaign rhetoric, many committed jihadists could not be tried in civilian court and would kill Americans if released. His law-enforcement framework was impractical: He would have to detain al-Qaeda captives indefinitely or find another way to try them. Consequently, he kept Gitmo open despite having promised to close it; and, with an assist from congressional Democrats, he made a few cosmetic tweaks in the military-commission system in order to camouflage the inconvenient truth that it was substantially the same commission system proposed by Bush and endorsed by Congress in 2006.

But while Obama preserved military commissions, he didn’t actually want to use them. Had he used them, and had terrorists promptly started being convicted and severely sentenced, public opposition to the civilian prosecutions beloved by his base would have stiffened. So now there is one obvious right thing to do: Give KSM and the 9/11 plotters the military commission and execution they should have had almost two years ago. Yet, Obama can’t bring himself to do it.

Instead, the man who claimed that indefinite detention without trial “destroyed our credibility” will indefinitely detain the terrorists without trial — at least until after the 2012 election, when either they will be some other president’s headache or electoral politics will no longer weigh on Obama. That’s change you can believe in.