Are Terrorist Trials the New Public Option?

From the Obama administration's November announcement that it would seek a civilian trial for Khalid Shaikh Mohammed, the alleged "mastermind" of the Sept. 11, 2001, attacks, a slow-boil of popular and political opposition has been mounting. Congressional Republicans have particularly opposed the trial, insisting on using little-tested military tribunals for accused terrorists. That opposition may have become more than the White House is willing to endure. The Washington Post reports that "advisers" to President Obama are "nearing a recommendation" to acquiesce civilian trials, using military tribunals instead.

The carefully-worded story neither names the advisers nor addresses whether they expect Obama to heed their advice. But support for civilian trials, used frequently during the Bush administration and championed under Obama by Attorney General Eric Holder, has been eroding within the White House. White House Chief of Staff Rahm Emanuel, making headlines this week for possible political disagreements with the rest of the White House, has opposed civilian trials as politically toxic. If the rest of the White House political team has joined to Emanuel's thinking--that civilian terrorists are far too controversial and unpopular to be worth pursuing--it could signal a reversal reminiscent of the White House's stance on the public health insurance option.

The public option had many lives and deaths during health care reform's journey through Congress. At various points the White House either remained silent or gave implicit support to Democrats pushing the public option, which eventually became a price for and symbol of liberal ambitions on health care. But by late February the public option's domination of the health care spotlight had made it politicall contentious beyond what the White House could tolerate. The White House made clear it had no intention of pushing the public option, effectively killing it. Marc explained that they saw it as a distraction.

The White House's political dance on civilian terrorist trials is starting to look reminiscent of its dance on the public option. When the trial's New York City location became politically contentious, the White House quietly agreed to move it. As the politics of terrorist trials become more volatile, and less in favor of Obama's positions, the White House has done little to push back. As with health care, it is quietly allowing public debate to take its course, and when the political winds shift, Obama shifts with them.

As with the White House political calculus that the public option should be sacrificed for the greater good of health care reform, it may now be considering that civilian trials should be sacrificed for the greater good of closing Guantanamo. Sen. Lindsey Graham has signaled that he will favor Gitmo's closure if Obama pursues a military tribunal for Khaleid Shaikh Mohammed. In a reflection of what are likely ongoing negotiations between Graham and the White House, he told Fox News on Thursday that he does not favor banning civilian terrorists trials altogether. "There is a role for the civilian courts to play," he said.

On policy grounds, Obama's thinking is more clearly in line with Holder's. Civilian trials have a far more effective record and serve an important purpose in demonstrating American rule of law and openness. But the Obama White House has often been about the "art of the possible" -- pursuing middle-ground solutions it considers politically sensible. However, the White House has put relatively little political capital into fighting for its national security goals. It's not clear that military tribunals are really the ceiling of possibility.

Ultimately, it's likely that this Washington Post story is merely a test balloon. The White House may be looking to simply gauge reaction to military tribunals. Perhaps they believe the story will shore up support for civilian trials among sympathetic Democrats or that it will inspire an advantageous public debate. After all, both the White House and Obama specifically have taken stronger public stances on behalf of civilian trials than with the public option. However, it remains a possibility that the Obama administration will let civilian trials become the next public option: a policy championed by liberals that is ultimately discarded as a political distraction not worth the fight.

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