Glenn Greenwald continues to attack the Obama administration from the civil libertarian position on the subject of civilian trials for terror detainees and it’s difficult to argue with him on any basis other than pure politics. The question is obvious: If KSM should be tried in civilian courts, why not everyone else who was not actually captured on the battlefield being held at Gitmo?
Can anyone reconcile Obama’s homage to “our legal traditions” and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing: i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?
Not from a principled perspective, no. The only answer is a political one: Obama is treating different detainees differently out of purely practical considerations.
During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke. He can’t possibly defend the sanctity of jury trials in our political system — the most potent argument justifying what he did — since he’s the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind.
Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials — as the Obama administration is doing explicitly and implicitly — what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York? If you’re taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people — as Holder has done — then what is the answer to the Right’s objections that Mohammed himself belongs in a military commission? If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn’t that true of Khalid Sheikh Mohammed? By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.
Even worse, Holder was reduced to admitting — even boasting — that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government’s assessment as to where and how they’re most likely to get a conviction:
Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions. I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.
Does that remotely sound like a “justice system”? If you’re accused of being a Terrorist, there’s not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win. Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called “post-acquittal detention powers.” Is there any better definition of a “show trial” than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?
There’s almost a sense in which the Bush approach was preferable; it was at least consistent in arguing that no one detained for terrorism reasons had any due process rights at all. Bush claimed that he could detain anyone he wanted, including American citizens, for as long as he wanted and no one had the authority to tell him otherwise.
Obama correctly criticized that position as authoritarian and dictatorial, which is exactly what it was. Yet now he claims the same power, but only sometimes; he claims the same power while simultaneously crowing about how fair and just the system is for those he isn’t treating that way. There was at least some intellectual consistency to Bush’s position; there’s only political convenience in Obama’s position.