Is the administration caving on federal criminal trials for Gitmo detainees?
Two days ago, the House passed a funding bill that contains a ban on using federal funds for criminal trials against Gitmo detainees, particularly alleged 9/11 mastermind Khalid Sheik Mohammed, that would last at least until September of next year. The administration says it opposes the ban.
But here's the question: Would the administration actually prefer it if the ban passed anyway?
Yesterday Attorney General Eric Holder sent a letter to Harry Reid and Mitch McConnell calling the ban "an extreme and risky encroachment on the authority of the executive branch." Facing the possibility of a ban in February, Holder wrote another letter to Congress along the same lines. Only on that letter he was joined by Defense Secretary Robert Gates, which gave the added weight to the idea that this would be an interference with the president's authority as commander in chief. Despite the fact that a ban would compound the already monumental difficulty of closing the detention camp at Guantanamo Bay, as Charlie Savage reports, the mood in the Senate isn't exactly one of urgency:
There was little immediate reaction to his letter in Congress, which has been rushing to finish work on many matters in the post-election session. But several aides to lawmakers said it was far from clear that the Senate would seek to modify it, noting that most Democrats in the House voted for the measure. (Republicans opposed the spending bill for other reasons.)
An administration spokesman made a statement saying it "strongly opposes" the provision, but it doesn't actually seem to be strongly opposing it. In a profile of Holder a few weeks ago, Wil S. Hylton portrayed Holder's commitment to federal criminal trials for the 9/11 defendants as at odds with political operatives in the White House concerned over the political cost.
With successful conviction of former Gitmo detainee Ahmed Ghailani having been portrayed as a massive failure for a civilian trials system where only 1 percent of terrorism cases actually end in acquittal, the administration may have simply decided that the political price for trying Gitmo detainees isn't worth it. The possibility of having to fight a protracted war over such proposals for the next two years as Republicans take over the House probably doesn't seem appealing.
Simply caving on trying Gitmo detainees would alarm and frustrate supporters on the left. Rather than simply looking like it's surrendered, the administration can just plead helplessness. By placing the blame on an unruly and uncooperative Congress, it could shirk responsibility for having to bring any more suspected terrorists to justice, at least for the next year. This way, two problems are "solved" -- it can avoid the political cost of another trial and do so without looking like it's deliberately folding on a key campaign promise.
Between the deal to extend the Bush tax cuts and the failure of the Senate to repeal don't ask don't tell, the past week has been a frustrating one for disillusioned liberals growing more alarmed over the administration's inability to keep its promises. But there may be more disappointment to come if the administration abandons yet another key commitment to the rule of law.
| December 10, 2010; 10:31 AM ET
Categories: Foreign policy and national security
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