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Flip Flop: White House Considering Military Trials for 9/11 Suspects

Josh Gerstein

Civil liberties and human rights advocates are expressing dismay at a report that top advisers to President Barack Obama are preparing to recommend that Khalid Sheikh Mohammed and other alleged September 11 plotters be tried before military commissions—not in a civilian court as Attorney General Eric Holder initially announced last year.

The Washington Post reported on its website Thursday that officials are “nearing” a recommendation for a military trial and are eager to resolve the issue before Obama departs for a trip to Guam, Indonesia and Australia on March 18. The Post account was attributed to “officials," who were not identified or quoted.

Obama aides pointed to White House Press Secretary Robert Gibbs’s comment that “no decisions have been made” on the issue.

“If this stunning reversal comes to pass, President Obama will deal a death blow to his own Justice Department, not to mention American values,” American Civil Liberties Union Executive Director Anthony Romero said in a statement e-mailed to reporters. “If the president flip-flops and retreats to the Bush military commissions, he will betray his campaign promise to restore the rule of law, demonstrate that his principles are up for grabs and lose all credibility with Americans who care about justice and the rule of law.”

In November, Holder declared that Mohammed and four alleged accomplices would be moved from Guantanamo Bay to Manhattan for trial in federal court there. Local officials and federal lawmakers were initially supportive, but last month that support quickly unraveled after business executives and owners complained about the protracted disruptions a trial would cause.

Justice Department officials scrambled to find another site for the trial but all of the obvious sites in New York, Virginia and Pennsylvania (the states where the crimes were committed) faced opposition from high-ranking officials in those states.

Returning the 9/11 case to a Guantanamo-based military commission, where it was in pretrial proceedings before being dropped earlier this year, could preempt efforts on Capitol Hill to ban civilian trials for the 9/11 suspects. The potential move could be attractive to Obama because it might help him win support for funding and legislative changes needed to close Guantanamo, which he’d initially pledged to do by the beginning of this year, by purchasing an Illinois prison to house remaining war-on-terror inmates from the controversial Caribbean island jail.

However, putting the 9/11 suspects into a military tribunal would not go far enough to satisfy some lawmakers who oppose civilian trials for any of the Guantanamo detainees. And it would not meet a central demand of one of those trying to broker a deal with the White House, Sen. Lindsey Graham (R-S.C.). He has said he will vote for such a package only if it includes a preventive detention law—something the White House opposes.

“We’ve argued from the day Attorney General Eric Holder announced his unilateral decision to try these terrorists in federal court in lower Manhattan that military commissions at Guantanamo Bay are the appropriate way to deal with such terrorists and we hope the President now agrees,” said Aaron Harison, the executive director of Keep America Safe, a new group launched by Liz Cheney, daughter of former Vice President Dick Cheney, and others to advocate “legislation and executive action that enhances the national security of the United States.”

“Backing down and moving the KSM trial to a military commission will not mollify Republicans, it will embolden them,” said Ken Gude, who studies detainee issues for the liberal Center for American Progress think tank. “A federal criminal trial for KSM is in the best interests of the United States and President Obama needs to stand up for what is right even if it is politically unpopular.”

The Obama Administration has never rejected the military commission option. Even Holder opted to send several Guantanamo prisoners for trials in that forum. But Obama and other officials expressed a preference for using civilian courts “whenever feasible.”

Some observers said it was odd that Obama might be in a position where fulfilling his vow to close Guantanamo depends on him opting largely, or even exclusively, for military-delivered justice.

“The Obama administration has not made much of an effort to defend—publicly or internationally—the reformed military commissions, and now it may find itself relying on them more than it ever expected,” said Matthew Waxman, a Columbia Law School professor and former Pentagon detainee affairs chief. “During the Bush years, military commissions and Guantanamo were always seen as going hand in hand. Now it turns out that accepting one of them may be the price of eliminating the other.”

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