In November, 2009, Mr. Holder announced that he had decided to bring Mr. Mohammed to New York City for a trial in a federal civilian court. But those plans quickly collapsed because of resistance by local officials, who balked at the prospect of potentially costly and disruptive security arrangements, and amid a wave of fear that followed the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009.
The Obama administration announced that it was studying other options for a Sept. 11 trial, including other civilian courts in less populated areas. But before it reached any decision, Congress moved to impose steep new restrictions on transferring any detainees from Guantánamo Bay onto United States soil, making such a trial impossible.
Because of Congress, there were only two choices: Keep the men in detention without trial until the law prohibiting money from being spent on transferring the men to the U.S. so they could be tried in civilian court gets repealed, or try them via military commission.
So it's kind of a Hobson's choice. Obama's revamped military commission rules are not much better than the rules under Bush. (Here's the latest protective order and procedures for defense counsel access to their clients as an example.) It will be easier to get the death penalty in a military commission trial. Much will be shielded from public view.
I was really hoping Obama and Holder could think outside the box and come up with a way to defeat the Republican-created ban on federal criminal trials. It's not the trials that were banned, just funding for getting them to the U.S. to stand trial.
Obama has taken a lot of well-deserved criticism for his endorsement of indefinite detention. The 9/11 detainees have been held 9 years without trial. They deserve their day in court. That court should be a federal criminal court, but Congress has made it impossible.
There's plenty of blame and shame due both Congress and the Administration over Guantanamo and the 9/11 detainees. Unfortunately, Obama has just ensured that no permanent marker will take away the stain on America's reputation.
Should he have waited until the 2012 elections were over in hopes a new Democrat majority in Congress would repeal the ban on federal trials? With Democrats like New York's Charles Schumer refusing to budge to avoid holding the trials in New York.
In November, when it became apparent there would be no federal criminal trials of these detainees, I wrote:
What does this say about Obama? That he's ineffective and lacks confidence in his ability to deal with Congress? That he doesn't have the backbone to fight for the policies he believes in and promised when we voted for him? Both?
Doing nothing and trying to sweep the 9/11 defendants under the rug as if they don't exist is not the answer. It's cowardly. President Obama should make the decision he believes in -- try these defendants in federal court. If Congress blocks it, then at least he did his best and stood up for what he believes. Voters will know it's Congress who is to blame. If he just gives up, he loses not only liberal support, but everyone's respect.
Unfortunately, Congress and New York officials left him with two choices: Continued indefinite detention or a military commission trial. Neither is fair.
Here's what I think they should do now: Take the death penalty off the table. There's no way a military jury won't find for death. The penalty phase will be the least fair part of the proceeding. Obama and the military should draw up new charges against the men that don't include seeking death.
We should have closed up shop at Guantanamo a long time ago.
If you can't trust in the integrity of the process, the ensuing verdict has no credibility. The trial process provided for by the Military Commissions Act is so fundamentally flawed, any verdict, but particularly a death verdict, will have no credibility, here or around the world.
If you're no longer familiar with the 9/11 detainees who will now be tried at Guantanamo by military commission, here's a primer post with links.
