Civilian or Military Courts for Terrorist Suspects?

The Bigger Picture
Published on March 25th 2010 in Metro Éireann By Charles Laffiteau
Last week I closed my column by mentioning that I believe the Obama administration is in the process of walking back from an idealistic but impractical decision by Attorney General Eric Holder to try the 9/11 terror suspects in US civilian courts rather than the military courts.
Given the previous Republican administration’s cavalier disregard for the constitutional privacy rights of American citizens as well as the human rights of those our government deemed to be enemies of America, I fully understand and support President Obama’s desire to adopt a more principled legal stance in dealing with the threat of terrorism as well as suspected terrorists. Like President Obama I believe that the threat to innocent human lives posed by pseudo-religious political terrorism is not an excuse for America or any other government to eschew its principles and the rule of law in the measures it adopts to combat terrorism.
But there are a substantial number of Americans who have been frightened by cynical and self serving politicians into believing that the only way to prevent future terrorist attacks is by ignoring our time honored legal principles and constitutional safeguards. These people are too afraid to take the time to consider what a slippery slope our country will be on should we allow our political leaders to justify the use of immoral and illegal methods of torture like ‘water boarding’ as well as indiscriminate wire tapping of phones in the name of fighting terrorism.
But historians, psychologists and political leaders, be they authoritarian or democratically elected, have long been aware that a fearful public is much easier to manipulate and thus inclined to support and or vote for political leaders who appear to be ‘tough’ on terrorism and suggest the use of legally and morally questionable solutions that also quench the public’s thirst for revenge. So like it or not, President Bush wasn’t the first politician to use the politics of fear to get himself re-elected as President and he most definitely won’t be the last one to successfully do so.
So it was against this backdrop of a fear that Rahm Emanuel first met with Republican Senators Lindsey Graham and John McCain in December of 2008 to discuss how best to reverse the Bush administrations fear based anti-terrorism policies after Obama took office in January. This meeting made perfect sense because a majority of those who had supported the Republican Party in the 2008 election were also voters who had bought into the Bush administration’s arguments that their questionable policies had protected Americans from further terrorist attacks.

Early on in his discussions with Senator’s McCain and Graham, Emanuel recognized that fulfilling President Obama’s pledge to close the Guantanamo Bay terrorist detention facilities would also require addressing several other politically sensitive national security issues. The biggest concerns included where to move the remaining Guantanamo terror suspects and a decision about whether they should have their trials in US military or civilian courts.
Senators McCain and Graham didn’t have a problem with President Obama signing an Executive order forbidding the use of water boarding torture methods to extract information from terror suspects. But these Republican Senators also told Emanuel that they could not justify the closing of Guantanamo Bay to their fearful Republicans supporters unless Obama agreed to hold the trials of 9/11 mastermind Khalid Sheik Mohammed and his cohorts in military courts.
Emanuel also concluded that President Obama would need some Republican support to get Congressional approval of the money the government would need to buy, reinforce and operate an underutilized maximum security prison in Illinois to house terror suspects before their trials and to imprison those who were later convicted. As a result, Rahm Emanuel advised President Obama, that civilian trials for the Guantanamo terror suspects would be a politically untenable move that most Republicans and many congressional Democrats would not support.
But after Attorney General Eric Holder presented his arguments in favor of civilian trials that were rooted in principle rather than political reality, President Obama’s senior White House political advisor, David Axelrod, then weighed in against Rahm Emanuel’s more politically astute judgment and in favor of Holder’s more principled stance. While I can understand why the President then decided that letting the Justice Department take the lead was the right and most principled thing to do, the most effective political leaders will always tend to err on the side of what is politically possible rather than taking a more principled stand that isn’t politically viable.
Just a Emanuel warned, bipartisan criticism of Attorney General Holder’s decision that Khalid Sheik Mohammed and four other 9/11 conspirators would be tried in a civilian court in Manhattan has been growing ever since it was first announced last year. New York City residents and Democratic political leaders have complained about the $200 million dollar cost of security for the trials as well as the disruptions it would cause to businesses and residents in Manhattan. Furthermore, the US Congress won’t approve the money Obama needs to buy and operate the prison in Illinois so the closure of Guantanamo Bay has also been delayed as a consequence.
So by the time you read this, President Obama’s advisers will have recommended that the Obama administration reverse Attorney General Holder’s decision to try Khalid Sheik Mohammed in US civilian courts and instead prosecute them in military courts. But whether it has been announced yet or not, this is a done deal. Why? Because Senator Graham has already said that if Obama will agree to use military tribunals to try terrorists accused of attacking the US, he will work to secure the funding and legal authority Obama needs to close the military prison at Guantanamo Bay and replace it with a new facility in Illinois.
I understand why President Obama and liberal Democrats believed trying terrorism suspects in civilian courts would be a symbol of America’s commitment to the rule of law. But doing this just isn’t possible as long as so many Americans remain fearful.