On the tangle over the trial for Khalid Sheikh Mohamed, the takeaway from Democratic national security experts is increasingly this: the Obama White House inherited a horrible mess of a detention policy, but its political decisions are making a very bad situation worse.

One policy expert who consults with the White House complains: "I try to be understanding of just how much of a total freaking mess this was that they got handed to them on Jan. 20. But I have very little sympathy with their complaints about moving on court imposed deadlines before they were ready on KSM."

That was in November. What was the administration doing for the past ten months, except for preparing to transfer him? KSM was already under indictment for the Bojinka terrorist plot and could have been moved to a cell in New York while the government prepared its indictment on the 9/11 case.

The question: is the White House really going to give up, to essentially allow Congress to force them to use military commissions? Why aren't they fighting back?  When Republicans tried to graft the issue on the recent intelligence authorization bill in the House, Democrats had the gumption to fight it off, and called the GOP's bluff.

Maybe Sen. Lindsay Graham has 50 votes in the Senate for his Rahm Emanuel-negotiated compromise--a more "open" tribunal in exchange for funding the Thomson, Illinois supermax home for detainees--but the Senate's bill is basically DOA in the House, given how tetchy House members feel about being bullied by the Senate on anything. News today that Sen. Dianne Feinstein opposes using military commissions for KSM is key--it gives the White House some ammunition, if they want to use it.

The arguments that the administration is the victim of irrational Republicans and "court-imposed timelines" aren't sufficient to explain the lack of a concerted, daily, public communications effort to fight for the principle of trying the 9/11 terrorists in federal courts. (The White House made the same arguments about "court imposed timelines" when they made the original military commissions decision in May 2009; the deadline really wasn't as hard as it seemed, in part because the administration didn't quite understand how military commissions work in practice.) And, of course, If they had scrapped the military commissions they wouldn't be in this mess.

From the White House's standpoint, it is no use fighting a losing battle, and to affirmatively annoy Congress would all but guarantee that Congress would block funding for Article III trials in perpetuity--and certainly prevent funding for the Thomson prison conversion. Realistically, the only way to preserve a role for Article III courts is to negotiate with Congress. 

From the standpoint of outside critics, the downside to fighting isn't obvious: maybe you'll lose and maybe you'll win. But everyone will know that you are willing to fight for what you believe in on national security issues. The spirit of Obama's speech on national security at the National Archives would be preserved. 

Right now every single wavering Democrat on the Hill is saying to themselves, "Why on Earth should I take a tough vote on this if the White House isn't even going to try and fight?"

Right now, the White House has one option to save the principle. One try, really. Quickly announce that while they have not yet decided on a venue, Khalid Sheikh Mohammed will be tried in a federal criminal court becuase it is the judgement of our military commanders, intelligence officials, and law enforcement community that a criminal trial for Khalid Sheik Mohammed is in the best interests of the United States. They would formally give Congress 45 days notice, and then dare the Senate to cut off funding. (Sixty votes would be needed.) Congress might have the votes, but the even if they did, there might be ways to ignore Congress--reprogram funds, for example. 

If the president does not do that, then KSM will be tried in a military tribunal. 

The White House desperately wants to avoid the creation of an ad hoc policy that can easily be altered by the next president, but its unwillingness to fight for this--or even give the appearance of a fight--is feeding the inevitable creation of an ad hoc system influenced just as much by the forces of reaction (defined by the administration) as by the forces of progress. The minority party's presidential candidate and Senate leader are making a case that even the previous administration did not have the gumption to make: that NO terrorist can ever be tried in civilian courts. And no one is making the case for why military commissions aren't ideal here: that Thomson wouldn't open for two years, which means at least two more years of Gitmo.

Thumbnail photo credit: Pete Souza/White House Flickr

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