Khalid Sheikh Mohammed: The Capitulation Is Complete

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Updated 2:58 p.m. -- In the case of Khalid Sheikh Mohammed, the Obama administration's capitulation is complete. Attorney General Eric Holder, who only 17 months ago heralded a federal civilian trial in New York City for the man accused of masterminding the largest mass murder in American history, now has the dubious chore of announcing to the world that Mohammed instead will be prosecuted by military commission down at Guantanamo Bay, Cuba.

The reversal of plans, if not of policy, will likely be considered one of Holder's most disappointing legacies at the Justice Department. As recounted masterfully last year by Jane Mayer in The New Yorker magazine, Holder inexplicably missed several opportunities early on in the process to ease the concerns (some warranted, some not) of local New York officials and other politicians regarding holding a civilian trial in Manhattan. And it has become increasingly clear over time that the White House and Justice Department have been unable to stem the tide of fear and loathing toward Mohammed (and the other terror law detainees), as expressed with increasing ardor from Capitol Hill.

Whatever its political ramifications for the Obama Administration, Holder's retreat in United States v. Mohammed won't likely change the defendant's fate at all. He'll still be convicted and likely sentenced to death -- as he surely would have been had his case been left to jurors in lower downtown New York -- only it will probably now happen sooner rather than later. His military prosecutors won't have to focus just upon ensuring the lay-up conviction here, but also upon undertaking a trial that ultimately will withstand appellate review by the federal courts. The latter task almost certainly will be more difficult than the former.

I'll have more later -- after the Attorney General's press conference, scheduled for 2 p.m. It will be interesting to see whether Holder goes down swinging on this, and rightly calls out the Congress and other new-found opponents of civilian trials for terror suspects, or whether he declares that a military tribunal for Mohammed is the only practical way forward, given legislative opposition to bringing Mohammed to the States for trial.

Either way, however, today's executive branch cave to Congress reminds us how far we have come from the days, immediately following 9/11, when the executive branch did pretty much what it pleased, when it pleased it, in the vital area of terror law.

To his credit, at his brief press conference Monday, Holder did clearly criticize Congress for sticking its nose in the fundamental executive branch business of prosecuting criminals. He said legislators "intervened" and "imposed restrictions" upon traditional Justice Department functions -- limitations which President Obama previously had called "unwise and unwarranted."

The Attorney General also promised that the executive branch would continue to "fight" to repeal the congressional restrictions upon bringing terror detainees to the United States for federal civilian trials. But I suppose this will all depend upon what the definition of "fight" is.

Holder never explained the obvious disconnect between his pledge to fight and his complete retreat from the battlefield in this case. I mean, if you are the nation's leading prosecutor, and you aren't willing to aggressively fight for your right to prosecute a group of men charged with the deadliest crime in American history, what then, specifically, are you willing to fight for?

Long before the formal "restrictions" came into place on Capitol Hill, the Justice Department could have forced the issue in Congress by bringing Mohammed to trial in the U.S. Even recently, it could have asked the courts to broker the fight between the executive and legislative branches over the fate of the men. It could have put the heat on truculent local politicians. But the feds chose to avoid all of those fights until it was too late. One day, perhaps, we'll really know why.

In the meantime, we are left with palliatives from the administration about the need to bring justice and closure to the many victims and survivors of the terror attacks of September 11, 2001. Some of those folks wanted to see Mohammed tried in Manhattan, in what would have been the shadows of the Twin Towers. Others did not. But a mob, even the most sympathetic one, doesn't get to make venue decisions under our rule of law. Prosecutors do. Which is why I was struck -- stunned, actually -- when Holder refused to directly answer a question from a reporter about whether he, the Attorney General, was actually saying that he knew better than some of the 9/11 groups about where the Mohammed trial should have been held.

Deflecting the query, Holder said he knew better than Congress, which is true. What he should have said is what prosecutors say every day in this country when they charge people with crimes: Polls don't determine how prosecutions are conducted, prosecutors do. Now, those would have been fighting words -- and no less so because they are true.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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