During the 2008 presidential campaign, civil libertarians hoped that Barack Obama would roll back what they saw as the worst of the Bush administration's counterterrorism policies. Obama fell far short of their hopes, and now he's dealt them yet another punch to the gut. On Monday afternoon, just hours after the Obama campaign texted its launch announcement to supporters, Attorney General Eric Holder announced that purported 9/11 mastermind Khalid Sheikh Mohammed and other suspected 9/11 plotters will be tried by Obama's version of the Bush-era military commissions.
So on the same day he formally asked America for a second term in office, Barack Obama moved to ensure that the Bush administration's Guantanamo-Bay-based system of two-tiered justice for horrific terrorism-related crimes will endure.
Khalid Sheikh Mohammed, popularly known as KSM, is not just the self-proclaimed "mastermind" of the September 11th attacks. He's also perhaps the most prominent target of Bush-era interrogation policies. He was waterboarded multiple times and held in CIA "black sites," where detainees were subjected to extreme temperatures, solitary confinement, extreme sleep deprivation, "stress positions," and a form of beating known as "walling." KSM's trial, civilian or otherwise, is sure to be among the most followed and most controversial in history—a true "trial of the century." And by opting for a military commission trial for KSM, Obama was putting a final stamp of approval on some of the central elements of the Bush administration's handling of terrorism suspects.
During the press conference, Holder seemed frustrated that the administration had been forced—by congressional maneuvering, political demagoguery, and public opposition—to change its position. After all, it wasn't supposed to happen this way. The Obama team originally planned to try KSM and his compatriots in federal civilian court in New York City, following a precedent that has led to the conviction and imprisonment of hundreds of terrorists. But New York's mayor and chief of police balked, and any remaining political support for federal court trials collapsed. Now, KSM et. al. will face a military commission in Guantanamo Bay—a system that has convicted just a handful of people, most of whom received lighter sentences than are generally handed down for terrorism-related convictions in civilian courts.
Many people believe that, if he's guilty of the crimes he's accused of—namely, the cold-blooded murder of thousands of Americans—KSM deserves to die. But the military commissions, even under Bush, have never sentenced anyone to death. None of the military lawyers at Gitmo have ever defended a capital case through to the penalty phase. And as Holder pointed out in his press conference, it's still an "open question" whether someone who pleads guilty in a military commission can even be executed at all. But hey—at least John McCain and Joe Lieberman are happy.