The administration is considering a change in course in its prosecutions of Khalid Sheikh Mohammed and the other accused 9/11 conspirators, as Attorney General Eric Holder left the door open for military trials and administration officials said President Obama will take part in the decision, and, while the Obama White House has tried to keep its decision on terror trials from being at all political, it finds itself in a political situation, nonetheless.
Republicans have hammered the president and his party for Holder's decision--presented by the AG as his own independent legal thought, untarnished by the involvement of White House strategists--and polls show respondents solidly opposing it. Terrorism trials have become a political football at best, and a liability for Obama and his party at worst.
Now, having been held accountable for the AG's decision, Obama and the White House will get more involved. It's an open question whether any new decision will indeed be motivated by politics, but, since it will have political ramifications regardless, here's a list of political pros and cons to staying the course and trying KSM and the conspirators in a federal court, or pulling a 180 and announcing military trials.
Civilian Trials: Pro
The administration would have stood by its decision and refuse to cave to Republican criticism and political grandstanding. It would be able to assert that its Justice Department is not politicized in any way--that Holder made this decision independently, based on legal theory and norms--and that the department has not reverted to its Alberto Gonzalez days of political consideration and close liaisons with the White House.
The administration would claim it rejected the GOP "politics of fear"; it would say, confidently, that it chose to try terrorists the same way the Bush administration did, and the White House wouldn't allow itself to be politically victimized simply for being Democratic.
It can win the approval of civil rights groups that abhor the military detention system and blasted Obama for not doing away with the concept of military tribunals when he announced in May that he would revamp the government's approach while holding onto them. On the substance of those groups' complaints, the administration can avoid the murky precedent of military tribunals and claim it has moved on from the draconian days of the Bush administration, marked by indefinite detention and extraordinary rendition, and that it has brought U.S. terrorism policy and legality into the light--thereby earning a talking point and living up to the ethos on which Obama campaigned.
It can appear non-draconian to the rest of the world (Holder told the Post that the most important part of the trials, in his opinion, is "what the world sees in that proceeding") by affording terrorists rights outlined in the Constitution. By pushing forward with this plan, knowing that some in Congress don't like it, it can maybe even force Congress to pass laws that identify how terrorists should be tried, placing the burden on the legislative branch to define policy.
Civilian Trials: Con
The GOP attacks will not stop: they will keep coming, and they will only intensify as the trials and the 2010 elections draw near. GOP House and Senate candidates can make this an issue for their elections, and it may win them some points at the polls.
Civilian trials are unpopular: a recent Washington Post/ABC poll showed that respondents preferred military trials by a margin of 59% to 35%. Americans generally approve of how President Obama is "handling terrorism"--the same Post/ABC poll showed 49% support, vs. 44% opposition among respondents--but now that Obama will be involved in the decision, proceeding with civilian trials could risk a slide in his approval numbers on national security. Obama could appear out of touch with popular sentiment.
Conversely, Obama might appear to have dodged the decision. If Holder's plan is upheld without overt ownership by the president, it would appear that Obama took a hands-off approach on an important issue, and he will (fairly or not) look weak to some voters for having done so. Having tried to keep this apolitical, the White House is already taking heat for not getting its political minds involved, and analysts will continue to ask, "Where was the White House political team on this one?"
Senators opposed to civilian trials may press forward with a move to strip funding; if that passes (less likely) it would be a direct rebuke to the White House; if it doesn't (more likely) it would still constitute a brouhaha in which some Democratic senators turn on the administration--an ugly event for the president and his party.
Military Trials: Pro
The administration would make the popular decision: it's what the American people want, and it's typically a good political move to give it to them. It would signal a willingness to follow public opinion and back off ideas that are unpopular.
The Republican attacks would subside; cable news would stop devoting so much time to discussing whether civilian trials are good enough; the news-consuming public would cease to be inundated with Democrats on the defensive, saying, as their most prominent argument, "But that's how Bush tried Richard Reid!"
It would deliver a blow to the Democrats-are-soft-on-terrorism meme that Republicans have pushed since the dawn of time. That meme has been a big part of the GOP's platform since Obama announced he would close Guantanamo, and military trials would deflate it; they would remove one more weapon from the GOP's arsenal heading into the 2010 midterms.
It could even foster bipartisanship: Obama has tacked to the right on a few issues in the last month, signaling he wants to work with the GOP. This could be an instance of bipartisan outreach, a sign that Obama keeps an open mind on matters of policy.
The military tribunals could be tailor-made for KSM and the 9/11 conspirators, with legal and procedural questions answered out in the open. There is wiggle room on how the tribunals can be done: if it wants, the administration can make them as open or closed to press, evidence, and KSM testimony as it sees fit--satisfying the public impulse for military trials while still getting to decide what those trials look like.
Military Trials: Con
The administration would back down on the approach it has insisted is right; it would be seen as giving into pressure from critics. The reversed decision would be taken as an admission that the first one was at best mishandled, and at worst wrong. Many would chalk this up as a political loss.
The move would be seen as political, whereas the administration has insisted on keeping its decision free of politics all along. Cable-news debates about the merits of civilian trials would be replaced by debates on why the administration folded, whether the move was political, and whether the politics of it are good or bad.
The well-worn GOP attacks would be replaced with choruses of "I told you so"--Republicans would appear, smugly, to say they're grateful the administration came to its senses and realized how horribly wrong and dangerous and soft on terrorism it had been all along. In campaigns, GOP candidates would still say Obama tried to try KSM in federal court and botched the decision-making process.
It would alienate the administration's supporters, including Democratic members of Congress, who have backed it up in a tough fight. A reversal would be seen as rebuking some of those lawmakers who have argued forcefully that this is the right way to go.
The White House would face a full-on revolt of civil liberties groups, most of which have already criticized Obama as his administration has gone halfway to meet their demands (dealing with most Guantanamo detainees but leaving the door open to indefinite detentions, upholding the state secrets privilege, and holding onto the military tribunals system to begin with). Civil-liberties-minded liberals, in general, would blast the administration.
And while it may also be a good opportunity to tailor the tribunals system for KSM and the other alleged conspirators, the administration would still have to make important decisions about evidence and whether KSM gets to take the stand, opening debate on each of these points. Exploring the less-charted territory of military tribunals could, potentially, open up more criticism at more points than under the more-established civilian system--including some loud criticism from the left.