March 9, 2011 | National Review Online

Jonah v. Dr. K on Gitmo

 I just watched the clip of the discussion between Jonah and Charles Krauthammer on Bret Baier’s Fox panel last night. I come away unpersuaded by Charles’s argument.

 Jonah says he “smells a rat” in the Obama administration’s announcement that military commission trials will continue but that the president remains committed to his 2008 campaign promises to try terrorist detainees in civilian court and to shutter Gitmo. Charles counters that the announcement is actually a “complete capitulation.” Since, on its face, the announcement clearly is not a complete capitulation, Charles might as well have said he “smells a rat,” too — like Jonah (and the 9/11 families, and me, for that matter) he doesn’t believe the administration means what it says.

So the narrow disagreement is over what Obama is lying about. Charles says the lie is obvious: the nod to Obama’s 2008 promises is just a “cover” — a case of “saying what they have to say” — in order to avoid further embarrassing themselves with a straightforward concession that Gitmo will not close and any further legal proceedings will be under military, rather than civilian, justice. It is all over, says Charles, who expresses confidence that 9/11 mastermind Khalid Sheikh Mohammed will die at Gitmo.

That, however, dodges Jonah’s main point. Like Jonah, I think the administration remains committed to doing civilian trials, including for KSM and his 9/11 accomplices. But it realizes that the politics are very much against this right now — trying to do it would wound Obama’s reelection hopes, perhaps fatally. Even in blue, blue Manhattan, the public rose up against the notion of a civilian trial for the 9/11 jihadists. And remember that when Scott Brown won Ted Kennedy’s Senate seat in blue, blue Massachusetts, his campaign marveled at how much traction he got from arguing that terrorists should be treated like military enemies rather than defendants.

So what best suits Obama now is a holding pattern, in which — without any apparent shame — he takes advantage of yet another Bush counterterrorism tactic he once decried: indefinite detention of enemy combatants under the laws of war. The fact is, the administration does not have to do anything with the most notorious detainees. As a strict legal matter, the war (in particular, the congressional authorization to use military force) is not going to end before November 2012, so the administration can continue detaining the terrorists. There is, moreover, no political support for Obama’s desire to close Gitmo and bring the detainees into U.S. prisons. That’s not going to change before election time either, so that point won’t be pressed.

The president might be vulnerable if there is a sense that he is completely ignoring the detainees. The 9/11 families, for one, will keep that issue on the radar. So the administration is taking the next step that follows logically from its previous sleight of hand. Recall that though Obama campaigned against military commissions and suspended them upon taking office, he did not forswear them — he said he would “study” them. He then signed 2009 legislation purporting to improve them. That is, he preserved the option of commissions as a gesture to the Right — an empty gesture, as it predictably turned out, even though some were claiming capitulation then just as Charles is now. For the Left, Obama tweaked the process a bit — nothing of substance but a few cosmetic changes so he could pretend they were no longer those bad Bush commissions. More significantly from the Left’s perspective, Obama didn’t use these “new” commissions, so he could claim he hadn’t really sold out.

There was an exception: Omar Khadr, the now 24-year-old who was 15 when he murdered one American soldier and maimed another. But that was an exception the Left could only love — and let’s not forget that, during the Bush years, Jennifer Daskal, now an Obama Justice Department official who works on detainee issues, was among Khadr’s biggest advocates (while she was working at Human Rights Watch). Khadr was permitted to plead guilty in a military commission sweetheart deal in which he ostensibly got a mere eight-year sentence that is likely to become a two-year sentence once he is repatriated to Canada in the next few months.

That is, the Obama administration has learned that keeping the commission system isn’t so bad. It can use the system to strike plea deals that will allow it to say, with a straight face, that it used military justice to prosecute terrorists. Yet, the bottom line of those prosecutions will be to hasten the repatriation of those terrorists to other countries — thinning out the Gitmo population — even if past experience tells us that released detainees return to the jihad at alarming rates.

What the Obama administration won’t do is try the most notorious detainees by military commission. If, as Charles suggests, the administration’s announcement is a complete capitulation, what should happen next, as Jonah said, is very clear. Right now, today, the administration should reinstate the commission against KSM and the other 9/11 plotters. Recall, in January 2009, these guys were ready to plead guilty. The only thing that hadn’t happened was the commission trial — there had been three years of hard work, involving the dissemination of thousands of pages of discovery and full briefing on about a hundred motions for the military court to decide. It would be a very simple matter to get that commission back on track and bring it to a swift conclusion.

Don’t hold your breath. The Obama dream of trying KSM in civilian court may never be realized — if I had to bet, I’d bet against it. But I wouldn’t bet the ranch. There are people in the Obama administration — including the president himself, the attorney general, many top DOJ officials, top State Department officials, and others — for whom trying the 9/11 case in civilian court is an imperative. No, they are not going to wreck the 2012 campaign over it, but neither are they surrendering. They are biding their time, hoping that if the president is reelected there might be a window of opportunity — when everyone is exhausted from the bruising campaign and both parties are doing the familiar “new era of good bipartisan feeling” dance — to move the detainees into civilian court, and maybe even to close Gitmo and transfer the detainees to U.S. jails.

If Obama were completely capitulating, it would have been easy to satisfy the 9/11 families in Monday’s White House briefing. The administration could have told them that a military commission against KSM would proceed quickly. Instead, White House briefers dodged the questions — and pointedly reaffirmed their commitment to civilian trials.

Moreover, though nothing makes our thin-skinned president bristle more than comparisons to President Bush, Mr. Obama invited just such a comparison when he issued a Bushian signing statement upon endorsing the defense appropriations bill. He held himself up to this ridicule because he reckoned it a price worth paying to convey the message that he remains adamant about closing Gitmo, transferring the detainees into the U.S., and giving them civilian trials. And even when embassy bomber Ahmed Ghailani was recently acquitted on 284 of 285 counts, the administration went into overdrive to spin the civilian trial as a great success (the terrorist having been given a life sentence on the single count of conviction). All of these signs point in one direction: Even though they realize the political stars may not align for civilian prosecutions, the Obama administration is not going away without a fight. They are not capitulating on this any more than Scott Brown’s victory made them capitulate on Obamacare though Obamacare was about as unpopular as the prospect of a KSM civilian trial is. 

This is where I think Charles evaded Jonah’s main point. Dr. K says KSM will die in Gitmo. I think that’s probably right. But that doesn’t mean he will die because he was convicted and executed (or sentenced to life-imprisonment) after a military commission trial authorized by President Obama.

The more likely scenario is that Obama keeps KSM & Co. on ice at Gitmo — indefinite detention under the laws of war — through November 2012. At that point, either the new Republican president will finally authorize a commission trial or the reelected President Obama, no longer concerned about the political fall-out, will take another run at closing Gitmo and trying any remaining detainees in civilian court. Obama probably would not succeed: Chances are the GOP will be in control of both houses of Congress and even more firmly committed to blocking the transfer of detainees into the U.S. But that still wouldn’t mean Obama would say “uncle.” More likely, he would continue detaining KSM & Co. without trial through 2016, at which point it would be some other president’s problem.

Does Charles really think this week’s announcement was such a complete capitulation that we are going to be seeing a raft of military commission trials for the most atrocious detainees, including KSM? I’d be surprised if he does.

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