The Washington Post reports today that President Barack Obama’s top advisers are recommending the administration reverse its previous decision to prosecute the 9/11 conspirators in federal court and try them in a military tribunal instead. But hoping to secure Republican support by backing away from a criminal trial is a fool’s errand and would make an already difficult political situation much worse. President Obama should reject this bad advice and do what is right to protect American security and preserve American values. A trial of the 9/11 plotters in the tough and proven criminal system is in the best interests of the United States.
Secretary of Defense Robert Gates, General David Petraeus, and former Chairman of the Joint Chiefs of Staff and Secretary of State Colin Powell all supported Attorney General Eric Holder’s decision to move the trial of the 9/11 plotters into federal criminal court. The record of criminal courts is impressive, convicting hundreds of international terrorists in a universally respected and legitimate system. The military commissions system, on the other hand, remains plagued by association with Guantanamo, is virtually unused, and is woefully unprepared to handle a case as complex and challenging as the 3,000 counts of murder in the 9/11 attacks. A criminal trial of Khalid Sheik Mohammed and his co-conspirators will send the message to friend and foe alike that the United States has a core commitment to its system of justice and that the rule of law can prevail over terrorism.
The supposed rationale behind the decision is a widely reported deal with Sen. Lindsey Graham (R-SC) that would trade away a criminal trial to ensure the closure of the detention facility at Guantanamo Bay, Cuba. Closing Guantanamo is obviously a high priority, but the only problem with this maneuver is that there is no deal to be had with Sen. Graham that could possibly bring enough Republican and Democratic votes to get it done.
Sen. Graham also wants a bigger tradeoff than just the 9/11 trial in military commissions—he seeks a preventive detention statute and to establish national security courts for trying terrorism suspects. There are simply not the votes in either chamber for that deal just so President Obama can say he closed Guantanamo.
It has been a tough battle to hold the line on criminal prosecution of terrorists—one that required great courage from congressional Democrats and the support of the secretary of defense. Moving the 9/11 trial now will pull the rug out from under them and likely lead to legislation prohibiting criminal trials for at least the Guantanamo detainees and possibly even all suspected terrorists.
No one should think that the politics of terrorism are easy. The Obama administration inherited a terrific mess of a detention policy. Its political opponents have shamelessly attacked it from day one as weakening our defenses and inviting terrorist attacks. But President Obama must avoid compounding the problems by bowing to political pressure. He must have the strength and confidence to do what is best for the United States and keep the 9/11 trial in the criminal justice system.
Ken Gude is the Associate Director of the International Rights and Responsibility Program at American Progress.
- Criminal Courts Are Toughter on Terrorists than Military Detentions by Ken Gude
- New York’s 9/11 Trial Justice by Ken Gude
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