In testimony today before the Senate Judiciary Committee, Attorney General Eric Holder discussed how the administration would handle trials of terrorism suspects. Carefully leaving all options open for the controversial trial of Khaleid Sheikh Mohammed, Holder said the alleged mastermind of the Sept. 11 attacks could go before a civilian trial or military tribunal and that the trial's location could still be New York City. Rather than citing legal concerns as guiding the administration's deliberations, Holder said "protecting the American people" and securing a conviction would determine the decision. Repeatedly stating that future terror trial practices would be made on a "case-by-case basis," Holder's performance made clear that the administration is setting a policy of having no policy.
The White House wants to avoid codifying its practices on terror trials into law. Refusing to take a stand on the issue makes their Democratic supporters in Congress politically vulnerable. But that's not the same thing as capitulating to Republicans, who want to do away with civilian trials for terror suspects. Holder's statement that the Khaleid Sheikh Mohammed trial could still be held in New York, an option thought to have been scuttled by the White House, suggests that Obama may be willing to back the plan if Holder can secure enough support. The administration is letting the attorney general and Congress fight it out in public while quietly courting Republican Senator Lindsey Graham, whose support in seen as crucial. However the Mohammed trial ultimately unfolds, the White House apparently wants it to be a just-in-this-case exception rather than establishing a standard practice.