WASHINGTON -- After announcing it would try 9/11 mastermind Khalid Sheikh Mohammed and four alleged conspirators by military commission rather than in a civilian trial, the Obama administration quickly scapegoated Congress to explain the decision.
Attorney General Eric Holder announced Monday that his department was scrapping its November 2009 decision to hold Mohammed’s high-profile trial just blocks from the World Trade Center. Instead, they were moving the venue to Guantanamo Bay. Holder and other administration officials said the policy reversal was due to congressional interference in executive counterterrorism efforts and “needless” drumming-up of controversy.
“The reality is, I know this case in ways that members of Congress do not,” Attorney General Eric Holder said during a press conference. “I have looked at the files. I have spoken to the prosecutors. I know the tactical concerns that have to go into this decision. So do I know better than them? Yes.”
The attorney general said had not arrived at the decision comfortably. Had he had his druthers, Holder claimed, he would have kept the trial in its original setting, but the legislative branch controls the money for transferring the prisoners and securing the site.
The Ike Skelton National Defense Authorization Act for Fiscal Year 2011 prohibits use of funds to transfer defendants from Guantanamo Bay to the United States. In a file dismissing the indictment of Mohammed and the four alleged conspirators sent to the Southern District of New York on Monday morning, members of the U.S. Attorney’s Office pointed to the act as the prohibitive restriction preventing a federal trial.
Before Holder’s announcement, a Department of Justice official said that a military commission trial had become the “only option available given congressional restrictions.” If the message wasn’t clear enough, White House Press Secretary Jay Carney cited “congressional reaction to some of the goals that were laid out” as one of the reasons for the reversal. Asked whether blaming Congress was going to be the simple pushback, another official replied, “We're just explaining the facts.”
“[Congress has] taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that would have serious ramifications,” Holder said. “We will continue to seek to repeal those restrictions.”
If the Obama administration were seeking to make a villain out of the legislative branch, they had willing partners in some congressional lawmakers. Senate Minority Leader Mitch McConnell (R-Ky.) took a break from budget negotiations to praise the administration for following the will of an “overwhelming bipartisan opposition from the American people and their elected representatives here in Congress.” Senator Chuck Schumer (D-N.Y.) called Holder’s announcement the “final nail in the coffin of that wrong-headed idea,” referring to the possibility of a civilian trial. Rep. Peter King (R-N.Y.), chair of the Homeland Security Committee, described the change as “a long-awaited step in the right direction.”
Others in Washington seemed to agree with Holder that Congress had played a guiding role in the reversal of course. “I believe that the Congress forced the president into this decision,” Col. Lawrence Wilkerson said, “first, by their abject lack of courage in not wanting [Mohammed] tried ‘in their city, in their courtroom,’ and, second, by their inability to present the president with an alternative other than the military system.”
But Wilkerson, a onetime chief of staff to Secretary of State Colin Powell, refused to absolve the Obama administration entirely. “Of course the president, in complying, demonstrated a decided lack of moral courage as well,” he said.
It appears debates over the legal parameters of national security law don’t break down perfectly either along party lines or between branches of government. And while the vast majority of lawmakers praised moving Mohammed’s trial back to Guantanamo, others expressed both disappointment with the development and with what they considered to be Obama’s willingness to let it happen.
"I felt that if the scene of the crime was New York, why not try him in New York?" Rep. Jose Serrano (D-N.Y.) said. “I don't think we should do anything that gives the terrorists the ability to say they've disrupted the normal way we do things. Normally, we would have tried [Mohammed] at the scene of the crime.”
Michael Ratner, president of the Center for Constitutional Rights, said, “Had [Obama] showed some courage to begin with on these national security issues, I think he could have made huge gains.” But, he added, “Obama backed down every time there was a whiff of an oppositional problem on national security.”
Michael McAuliff and Jon Ward contributed to this report.
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