On Tuesday, the Pentagon issued a press release announcing that prosecutors in the Office of Military Commissions at Guantánamo had sworn charges against five prisoners: Khalid Sheikh Mohammed, Ramzi Bin al-Shibh, Walid Bin Attash, Ali Abd al-Aziz Ali, and Mustafa al-Hawsawi.
Accusing the five men of being “responsible for the planning and execution” of the 9/11 attacks, the Pentagon added that the eight charges are “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, hijacking aircraft, and terrorism.”
As the Pentagon proceeded to explain, subject to approval by the Commissions’ Convening Authority, Retired Vice Adm. Bruce MacDonald, prosecutors recommended that the charges “be referred as capital.”
Anyone paying attention will realise that we have been here before, on February 11, 2008, when the Pentagon announced that Khalid Sheikh Mohammed and the four others named above (plus a sixth man, Mohammed al-Qahtani, against whom the charges were later dropped) were charged with “conspiracy, murder in violation of the law of war, attacking civilians, attacking civilian objects, intentionally causing serious bodily injury, destruction of property in violation of the law of war, terrorism and providing material support for terrorism” — and four of them were, in addition, charged with “hijacking or hazarding a vessel.”
Astute readers will also recall that 18 months ago, on November 13, 2009, Attorney General Eric Holder announced that the five men charged on Tuesday would be tried in federal court rather than in a military commission at Guantánamo. Holder confidently told the nation and the wider world:
After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.
I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years. The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures.
I also want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties.
To critics of the military commissions (and there were many), Holder’s decision to pursue the alleged 9/11 co-conspirators in federal court was a principled and appropriate endorsement of federal court trials as the correct venue for terrorism trials. The commissions, revived by Vice President Dick Cheney in November 2001, had been designed to lead to the swift executions of those seized — and, in many cases, tortured — as part of the “war on terror,” and although the Supreme Court had ruled them illegal in June 2006, they had been revived by Congress.
There, lawmakers, adhering to the same flawed rationale of the “war on terror” as the Bush administration — namely, that terrorists are actually “warriors” — invented war crimes for a revived version of the commissions that first surfaced in the fall of 2006 and was then revived for the Obama administration in the summer of 2009.
Unfortunately for Holder, who believed — correctly, in my opinion — that trying Khalid Sheikh Mohammed in a courtroom would be “the defining event of my time as Attorney General,” and that “History will show that the decisions we’ve made are the right ones,” the decision to revive the commissions, as well as endorsing federal court trials, fatally muddied the waters.
Holder looked rather foolish when, at the same time as announcing that KSM and his alleged co-conspirators would be tried in federal court, he also stated that five other prisoners would face trials by military commission, but, more important, the administration’s ambivalence — and its refusal just to focus on federal court trials — gave critics the option of pushing to shut off federal court trials while advocating for military commission trials at Guantánamo instead, and this is exactly what happened.
A cynical movement to stir up hysteria regarding a federal court trial in New York was so successful that the White House backed off, allowing lawmakers the opportunity to insert a provision into a military spending bill before Christmas last year that prevented President Obama from bringing any Guantanamo prisoner to the U.S. mainland to face a trial, and which, to rub salt into the wound, explicitly mentioned Khalid Sheikh Mohammed by name.
Faced with this rebellion, Obama refused to consider a veto or a signing statement, meaning that the only viable option for a trial would be at Guantánamo, as the cheerleaders for the commissions always intended.
Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.
Tuesday’s announcement, therefore, provides nothing to celebrate — just a confirmation of President Obama’s failures to seriously tackle his critics when it comes to “national security” issues, which has been repeated over and over again in the last two years.
For Eric Holder, the disappointment is far greater, as he is on record as noting that history will judge him on how he deals with Khalid Sheikh Mohammed and his alleged co-conspirators. However, Holder is not the only loser. The administration, Congress, and the American people who, in large numbers, have allowed themselves to be seduced by the poisonous rhetoric of the Bush administration’s “war on terror” have also lost, for the simple reason that military commissions remain a shameful, sub-standard venue for trials as important as these.
Contrary to the rhetoric of those endorsing the commissions, the last thing the relatives of those who died on September 11, 2001, need is for the alleged perpetrators to be prosecuted in a chaotic kangaroo court. However, nearly ten years after the attacks, justice — fair, transparent justice, with a long historical pedigree — remains sidelined, bullied into submission by those who, still driven by vengeance, want the alleged perpetrators to be considered “warriors” rather than what they are — mass-murdering criminals who do not deserve to be able to usurp the rhetoric of this phoney war for their own ends.