Another Presidential Flip-flop

November 15, 2010

Khalid Sheik Mohammed

The Obama administration released a trial (no pun intended) balloon over the weekend, leaking that it was thinking of shelving plans to bring Khalid Sheik Mohammed and the other alleged 9/11 conspirators to trial.

Instead the administration is apparently considering holding KSM and other GTMO detainees indefinitely as Prisoners of War. Far from closing GTMO, the new Obama plan seems to be to institutionalize it as part of the national landscape.

If GTMO becomes a permanent feature of America’s counter-terrorism architecture it is inevitable that sooner or later new detainees will be sent there. Federal agents and intelligence officials faced with a hard case or sensitive sources to protect will opt for indefinite detention over prosecution. More mistakes are going to be made.

Indeed, given the amount of flip-flopping we have seen from the White House on this issue, I am beginning to wonder how long it will be before the Presidential ban on coercive interrogation is lifted in the spirit of bipartisanship.

In June 2009 Attorney General Eric Holder met with 9/11 families and told them that he was personally committed to bringing the perpetrators to trial in open, transparent courts. This was the only way forward if the administration was to rehabilitate America’s damaged reputation on the world stage.

Now it seems that the Attorney General’s commitment to fair and open trials is to be sacrificed on the altar of political expediency, and the Democrats wonder why so many of the people who voted for President Obama in 2008 stayed home for the midterms.

If KSM and his cohorts are held as Prisoners of War they will never be brought to account for their actions and the United States will tacitly be treating the 9/11 attacks as an act of war.

By any legal standard the 9/11 attacks were no such thing. Under US criminal law they were an act of unparalleled mass murder, under international criminal law they could amount to a crime against humanity. Acts of such appalling brutality cannot be allowed to go unpunished.

The families of the victims of 9/11 are entitled to their day in court. They are entitled to learn about the 9/11 plot in forensic detail. They are entitled to see justice done and have confidence in the court’s decision. They are entitled to closure.

If the Obama administration insists on treating KSM as a warrior, and not as a criminal defendant, the victims of 9/11 will be denied these things. Furthermore, if the War on Terror ever ends, KSM can, in theory, walk out of GTMO a free man without a stain of his character.

The Obama administration refers to KSM and the other GTMO detainees as “legacy cases” as if this somehow absolves them from any responsibility to clean up the mess they have been bequeathed. President Obama was elected to fix this mess not put it off for the next incumbent to wrestle with.

There has only ever been one way to close Guantanamo: prosecute those you can and release those you can’t. The legacy of mistreatment from the Bush administration presents a real hurdle to judicial prosecutions, but not an insurmountable one.

Hard work and the careful assembly of untainted evidence should enable the construction of effective cases, even where abuses have occurred. But why bother when you can just lock people up indefinitely without the need to justify your actions?

Sadly, it seems the only change that the Obama administration is bringing to US national security policy is a determination not to repeat the mistakes of its predecessor, by committing an entirely new set of mistakes all of its own.