The consensus on today's news that White House advisers are telling President Obama to abandon civilian terrorist trials seems to be that their advice is motivated by politics. President Obama has long supported civilian trials for accused terrorists such as Khaleid Shaikh Mohammed, believing them to be more effective and constitutional than military tribunals. But political and popular pressure from the right has been pushing hard for military tribunals. The White House is still "weeks" away from a decision, but they're clearly in a political bind over this high-profile national security policy.
The Atlantic's Marc Ambinder explains that Obama isn't flip-flopping because he doesn't know what he wants. "Officials know full well that Obama himself is committed to the principle his administration has been trying to articulate since its inception, which is that combating terrorism need not be at odds with full adherence to the rule of law." But Obama is "boxed in" not just politically but legally. Ambinder explains the complex legal issues surrounding terrorist trials and the closure of Guantanamo. The two issues are linked by policy and also by the political routes Obama has taken.
But the legal consensus -- the options being given to the president by David Kris, by Mary DeRosa, the legal adviser to the NSC, and by Bob Bauer, the White House counsel, make it clear that military tribunals would be the most feasible option at this point. These advisers seem to have arrived at this conclusion reluctantly, but without prejudice. Goal number one is to close Gitmo, and that means introducing its detainees to the justice system. Goal number two is to bring the 9/11 plotters to justice -- lower-case "j" -- because the venue and manner has always been a matter of intense dispute.
If he acquiesces, "Obama will be seen as essentially codifying the Bush-Cheney legal architecture and their definition of the laws of war as applied to terrorism. This appalls the left, and one can see why, because that legal schema was built to make it easier to deprive suspected terrorists of their rights much more quickly and with much less transparency. The truth, though, is that Obama, since he became president, doesn't see this issue in black and white." The truth is also that the law, and not just the politics, are far more complicated than many observors might first think.