On Terror Trials, Obama's Policy Is No Policy

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In testimony today before the Senate Judiciary Committee, Attorney General Eric Holder discussed how the administration would handle trials of terrorism suspects. Carefully leaving all options open for the controversial trial of Khaleid Sheikh Mohammed, Holder said the alleged mastermind of the Sept. 11 attacks could go before a civilian trial or military tribunal and that the trial's location could still be New York City. Rather than citing legal concerns as guiding the administration's deliberations, Holder said "protecting the American people" and securing a conviction would determine the decision. Repeatedly stating that future terror trial practices would be made on a "case-by-case basis," Holder's performance made clear that the administration is setting a policy of having no policy.

The White House wants to avoid codifying its practices on terror trials into law. Refusing to take a stand on the issue makes their Democratic supporters in Congress politically vulnerable. But that's not the same thing as capitulating to Republicans, who want to do away with civilian trials for terror suspects. Holder's statement that the Khaleid Sheikh Mohammed trial could still be held in New York, an option thought to have been scuttled by the White House, suggests that Obama may be willing to back the plan if Holder can secure enough support. The administration is letting the attorney general and Congress fight it out in public while quietly courting Republican Senator Lindsey Graham, whose support in seen as crucial. However the Mohammed trial ultimately unfolds, the White House apparently wants it to be a just-in-this-case exception rather than establishing a standard practice.

Obama may be willing to cede ground on terrorist trials because he is so anxious to move forward on terrorist detention. Three months after his self-imposed deadline on closing the prison on Guantanamo Bay, he still lacks a new home for the "fifth category" detainees who cannot be tried, deported, or released. Three months ago, the administration said it had whittled the fifth category down to "nearly 50" detainees and was seeking to decrease that number further. But at today's testimony, Holder reported 48 such detainees, indicating that the administration has made no progress and may believe it is stuck with indefinitely detaining these 48 suspects.

This is where Senator Graham comes in. "We don't have a viable jail," he told Holder during today's committee hearing. Graham, agreeing with Holder that Guantanamo should be closed but pointing out that the administration lacks a proper receptacle for terror suspects seized in Yemen, said the U.S. needs a "new facility" where detainees would serve a "de facto life sentence." Presumably, that would be Thomson Correctional Facility in Illinois. Holder declined to challenge Graham on the prospect of establishing indefinite detention on U.S. soil. If Graham's plan goes forward, it could be a big step towards Obama's goal of closing Guantanamo. But the administration appears willing to make substantial concessions along the way.

Image: Attorney General Eric Holder testifying today before the Senate Judiciary Committee. Alex Wong/Getty Images

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Max Fisher is a former writer and editor at The Atlantic.

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