Obama Finally Flip-Flops On Military Commissions and 9/11 Detainees

Wow – what a difference two years and the experience of actually governing a country make.

In the Obama administration’s latest flip-flop on Gitmo and military commissions, Attorney General Eric Holder has announced that self-professed 9/11 mastermind Khalid Sheikh Mohammed and four co-conspirators will head back to court at Guantanamo Bay.

This is despite the fact that Mr. Obama halted this very same military commission case, U.S. v. Mohammed, et al, even though it had been going reasonably well with multiple court appearances at Gitmo pre-trial hearings from June 2008 through January 2009. In fact, KSM had reached the point of discussion with a military judge about entering a guilty plea.

Though the military commission against KSM, et al was progressing well, the Obama administration bowed to international pressure and misread the sentiment of the American people -- unwisely attempting to bring the case to a civilian federal court in New York City – a move which would have cost taxpayers $200 million a year in security, while potentially turning lower Manhattan into an armed camp for several years.

Such a public trial would have also provided KSM a powerful platform to launch anti-U.S. and anti-Semitic rants that would have served as a rallying cry to Islamists everywhere -- and surely swelled the ranks of home grown terrorists like Colleen LaRose, a.k.a. "Jihad Jane," Times Square bomber Faisal Shahzad, and Fort Hood shooter Major Nidal Malik Hassan.

The Obama administration already had a near miss with a civilian trial. The administration nearly escaped disaster in the one ex-Gitmo detainee trial held in New York last year.

Despite a mountain of evidence against East African Embassy bomber, Ahmed Ghailani of Tanzania, “jury peculiarities” resulted in his acquittal of 284 of 285 charges. Ghailani was found guilty of just one count of conspiracy to destroy government buildings – though inexplicably and somewhat miraculously did receive a life sentence for that one charge.

As we’ve seen civilian juries can render bizarre verdicts – from O.J. Simpson’s murder trial in 1994, which was really a judgment on the Los Angeles Police Department, to a New Mexico jury which awarded $3 million in damages to a woman burned by hot coffee. It is shortsighted for the administration to allow the world’s most dangerous terrorists to benefit from such a system -- especially when reasonable alternatives exist for a country at war.

Indeed, since KSM was one of three detainees to be waterboarded (though none at Gitmo), a civilian trial could have easily been turned into a referendum against the Bush administration – particularly against former Vice President Dick Cheney who publicly espoused the value of such coercive interrogation techniques.

Finding a civilian juror wishing to make a political statement against former President Bush, Mr. Cheney and Secretary of Defense Donald Rumsfeld certainly would not be beyond imagination. Or, like KSM, some jurors may similarly oppose U.S. military presence in the Middle East, our support for Israel, or a variety of other foreign policy decisions -- and could simply vote “not guilty” – thus throwing a civilian case into disarray.

In Mr. Holder’s announcement Monday, he still insisted that civilian courts are the right venue for terror trials and repeated his calls for Gitmo’s closure. Criticizing Congress for restricting the transfer of Gitmo detainees into the U.S. mainland, the Attorney General claimed that he alone knows these cases best – and how and where they should be prosecuted.

While it is true that Congress deserves the credit for halting Gitmo detainee transfers into the U.S., they didn’t force the Obama administration to re-start the 9/11 military commission. KSM, et al could have lingered as enemy combatants held in indefinite detention -- like dozens of other Gitmo detainees who will never face trial for a variety of reasons.

Rather, what appears to have prompted the most recent turnabout is Mr. Obama’s sagging approval numbers -- which last week hit rock bottom for his presidency at just forty-two percent. 

In appearing to move to the center on Gitmo and military commissions, Mr. Obama is reaching out to independents -- a crucial group of voters -- as his 2012 re-election campaign gears up.

Meanwhile, 9/11 victim family members, many of whom attended the KSM, et al military commission proceedings at Gitmo in the original case, will have the chance to see the wheels of justice turning on this case once again.

It’s too bad that it took an act of Congress combined with Mr. Obama’s increasing unpopularity to get it done.

J.D. Gordon is a communications consultant to several Washington, D.C. think tanks and retired Navy commander who served in the Office of the Secretary of Defense from 2005 to 2009 as the Pentagon's spokesman for the Western Hemisphere. For more info on Mr. Gordon, click here.