Report: Deal for 9/11 Military Commission Trials Just About Done

There's a really unfortunate report in the Wall St. Journal saying the ink is almost dry on a deal to try the 9/11 suspects in military commission trials rather than federal criminal courts.

Under the deal, spurred by (of course) Lindsey Graham and Rahm Emanuel, and White House counsel Robert Bauer, 48 Guantanamo detainees would be held indefinitely without charges. And,

Mr. Graham wants civilian courts to be reserved for low-level Al Qaeda operatives and terrorist financiers, a far smaller group than previously considered.

White House and Democratic aides in the Senate said what they called an opening "proffer" from Sen. Graham won't be the final outcome. But the broad framework of a deal is done. "We're now at the 'getting serious' stage," said one senior Democratic Senate aide.


A military courthouse would be built at Thomson Correctional Facility in Illinois, which the Feds will buy and renovate as a maximum security prison. Because that benefits Illinois, you can expect Dick Durbin to lend his support. Also being recruited: Senate Armed Services Committee Chairman Carl Levin (D, Mich) and Ben Cardin (D-MD.)

After the deal, Attorney General Eric Holder will spend less time on terrorism:

Having lost this battle, Mr. Holder is expected to spend more time pursuing such Justice issues as financial fraud, civil rights and changes to crack cocaine sentencing laws, though an aide notes that national security cases will remain his top responsibility.

What's the difference between indefinite detention at Guantanamo and in Illinois? None, other than a change in zip code. Shame on the Dems for caving on this.

The point in closing Guantanamo was to stop holding prisoners there. That could be done by moving the 9/11 defendants and those facing military commission trials to prisons and military brigs in the U.S. (including Supermax in Colorado and the one in South Carolina where Jose Padilla was held for years) and sending the remainder home or to third countries.

If Republicans wouldn't pay for Thomson, so be it. We have enough Supermaxes to house the fewer than 75 remaining detainees that have not been cleared for relase. We don't need Thomson. If Republicans want to pay to keep Gitmo open with no prisoners, let them.

Why couldn't DOJ just file charges in federal court, give Congress 90 days notice and then move the defendants to federal prisons in the districts where the charges were filed? Whether Congress blocks the funds for holding the actual trials is a separate issue from moving them when charges are filed.

I bet Congress would fund the trials pretty quickly as soon as the first defendant files a motion to dismiss based on speedy trial grounds, which if won, would mean their freedom. Obama should stick to his principles on this one. He's getting bluffed and kicked around by Lindsey Graham and it's going to cost him a lot of liberal votes in 2012. And for what? Republicans will criticize and blame Obama in 2012 for the military commissions because the 9/11 defendants will probably still be appealing the results and they'll say it's his fault. Obama can't win with Republicans, he ought to stop trying to appease them.

Obama: From hope you can believe in to disappointment you can count on. What a legacy he's building.

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    I don't get what Graham is giving in return. (none / 0) (#1)
    by ruffian on Fri Mar 19, 2010 at 09:09:12 PM EST
    His promise not to filibuster something? His vote on something? Is he speaking for anyone but himself on this? Is every other Dem Senator on board with this - one of them could filibuster it as easily as Graham could.

    I think Jeralyn's suggestion makes perfect sense:

    Why couldn't DOJ just file charges in federal court, give Congress 90 days notice and then move the defendants to federal prisons in the districts where the charges were filed? Whether Congress blocks the funds for holding the actual trials is a separate issue from moving them when charges are filed.

    Let the fight be over funds for the trials.

    I need to get offline now.

    Still wondering what Tribe thinks about this. (none / 0) (#2)
    by Mitch Guthman on Fri Mar 19, 2010 at 10:30:02 PM EST
    At the risk of boring my fellow blog readers with my private obsession, I think maybe it's time for another episode of  "I wonder how Laurence Tribe is feeling tonight"?  As some of you may recall, I have often asked whether the author of my favorite treatise on Constitutional Law sees the Obama administration's record on civil liberties in as depressing a light as I do.  It's something I still think about from time to time.

    Reading Jeralyn's post, I was moved to ask once again about whether Prof. Laurence Tribe might be rethinking his very pivotal endorsement of his former student.  You will all surely recall Prof.  Tribe's very important campaign speech in support of Obama in which he famously said:  " `The next president won't be in a position to make this a liberal court, but he can prevent it from becoming reactionary and moving to unreviewable executive power,' Tribe said, adding that Obama shares his views on Constitutional law."(TPM: Tribe campaigns for Obama). In the same interview, Prof. Tribe also said:" ...if Obama  [is] elected, he would appoint justices "who share his view that the Constitution is a living document that has to be interpreted in light of evolving values of decency." (Concord Monitor, Nov. 14, 2007)

    And so, yet again, I must ask: Does Prof. Tribe really believe that the power of permanent arrest, long considered the hallmark of a dictatorial regime, is consistent with evolving values of decency?  

    For some reason which I don't understand, nobody  seems to have gotten around asking Prof. Tribe for his thoughts on this subject.  Maybe in light of this new development some enterprising reporter will ask him?

    Tribe (none / 0) (#3)
    by jbindc on Sat Mar 20, 2010 at 07:28:37 AM EST
    Is now technically part of the administration and it probably would not be prudent for him to voice a public opinion contrary to his bosses.

    internment for those deemed (none / 0) (#9)
    by Salo on Sat Mar 20, 2010 at 12:20:00 PM EST
    to be terrorists is hardly a legal innovation.   Witness the late 70s in the UK with the IRA.  

    I'm not shocked (none / 0) (#4)
    by jbindc on Sat Mar 20, 2010 at 07:33:45 AM EST
    I never really believed this would happen.  It was definitely one of those things said in the heat of the campaign that sounded good, but no one was going to do it -  we've turned that corner.  This is the new reality.

    If these policies can be applied domestically... (none / 0) (#5)
    by lambert on Sat Mar 20, 2010 at 09:24:50 AM EST
    ... and as IIRC, the definition of "terrorist" is extremely broad and at the President's discretion, then they will be very useful to the Republicans when they return to power via the operations of the ratchet effect. Which, I imagine, is why Obama's doing it. One hand washes the other, after all.

    If you were Mr. Holder, would you resign? (none / 0) (#6)
    by oculus on Sat Mar 20, 2010 at 11:07:35 AM EST

    obama as false prophet (none / 0) (#7)
    by pluege on Sat Mar 20, 2010 at 11:14:10 AM EST
    worse than an honest republican (if there were such a thing)

    Anyspacewhatever@ilinois.gov (none / 0) (#8)
    by Salo on Sat Mar 20, 2010 at 12:08:07 PM EST
    We house the politically inconvenient.  Formally at GITMO@yoohoo.com

    Good thing Democrats won. n.t (none / 0) (#10)
    by dkmich on Sat Mar 20, 2010 at 12:27:40 PM EST