A Political Decision This Ain't
Here's what the Attorney General isn't doing. He's not following public opinion, which generally opposes conducting any sort of 9/11 terrorist trial in the United States. He's not following perceived political wisdom, in that the administration is not providing cover for Democrats who are afraid of Republican remonstrations on terrorism. He is not appeasing special interest groups, the bulk of whom -- the ACLU being an example -- oppose quite vociferously the prospect of any new military commissions.
If this is politics, it's really dumb politics. And that's why it's probably not politics. Occam's razor applies. Obama and Holder are sincerely -- perhaps naively, but that's something we won't know for a while -- attempting to change the way the American people and the world think about counterterrorism. They want to change the narrative from a "strength/weakness" metaphor to an "example/rule of law" metaphor. This sounds a little PoMo, but it's the mark of a president who, on this issue in particular, does not believe that the old ways of thinking make America any safer. Certainly, they don't contribute to a national security politics of consensus.
This will be a hard sell. The chief GOP arguments -- that terrorists don't deserve the same rights as Americans -- even common criminals -- and that the 9/11 terrorists are inherently of a different and more nefarious breed of species than people who break the law -- are generally supported by Americans.
Now -- there is a conspiracy theory out there that Holder decided to try the 9/11 five in Article III trials because he wants to find a way to get all the bad stuff the Bush administration did out into the open without being blamed for doing so. The idea is that federal trials will inherently lead to the compromise of classified information. On its face, it's sort of absurd -- the motive, that is. But the risk of disclosing sensitive methods and sources is real, albeit one that the interagency process has focused on and found manageable; the CIA's general counsel said yesterday that the agency is working quite closely on ways to protect its sources and methods in upcoming federal trial. Those promulgating this conspiracy certainly do not have much faith in the experienced terrorism prosecutors from the Southern District of New York or the Eastern District of Virginia, or the federal judges who will administer the trials, or even the jurors who will decide them.
What distinguishes the 9/11 five from the five defendants who'll stay in the military commission system? The location of their terrorism. Plots that culminate inside the U.S. will be disposed of, it seems, using regular methods. Plots that culminate outside the U.S., like, say, in Yemen or in war zones -- will be treated differently. One of the five non-9/11 defendants whose disposition was announced today, Ahmed Haza al-Darbi, does not stand accused of plotting to kill or capture U.S. soldiers: he's on trial for trying to bomb oil tankers in the Straits of Hormuz.