RUTHFULLY YOURS

CAN WE REVERSE THE KSM TRIAL? ABSOLUTELY….ANDREW McCARTHY

Posted By Ruth King on December 3rd, 2009

National Review Online
Andrew C. McCarthy

NR Contributing Editor

December 02, 2009, 4:00 a.m.

http://article.nationalreview.com/?q=MzIwMmIxMWQyZTEyZDRiMjI4ZjU0YmUyZTkyNjM4OGY=

Reversing Obama on the KSM Trial

The prisoner abuse photos show it can be done.

Is there any way of getting Obama to reverse himself on KSM? If I’ve heard that question once, I’ve heard it a thousand times since Attorney General Eric Holder’s announcement that Khalid Sheikh Mohammed and four other 9/11 plotters will be transferred to New York City for a trial in the civilian justice system.

My answer has been the same each time: We absolutely can get President Obama to reverse this decision. We’ve done it before. This spring, outraged Americans made their voices heard when the Obama administration attempted to disclose top-secret photographs said to depict the abuse of prisoners in U.S. custody. The president backed down, reversing his attorney general’s decision not to appeal a disclosure order. On Monday, that popular national-security resolve paid big dividends when the Supreme Court ruled in favor of keeping the pictures classified. Much to the chagrin of DOJ’s pro-detainee activists and their friends at the ACLU, the photos will not see the light of day.

It’s worth pausing to consider how this happened. The photo episode gives us the template for turning back the administration’s determination to reward the murderers of nearly 3,000 civilians with gold-plated justice.

Just like a future KSM trial would be, the photo-disclosure escapade was pure theater, with a Manhattan federal court as its stage. The ACLU had pushed for disclosure of the photos under the Freedom of Information Act (FOIA). A federal judge agreed that disclosure was warranted, and the U.S. Court of Appeals for the Second Circuit concurred. Though these rulings were dubious (as I discussed here), they are largely explained by the fact that the executive branch refrained from asserting all of its FOIA powers. Under FOIA, the president may issue an executive order exempting from disclosure matters that should be “kept secret in the interest of national defense or foreign policy.”

Obviously, President Obama did not want to issue the order that would have sealed the photos. His Justice Department did not even want to try appealing the Second Circuit’s ruling to the Supreme Court. Instead, the administration sought to publicize the photos, knowing its antiwar base is using new disclosures to urge foreign tribunals to charge Bush-administration officials with torture and other war crimes. Such a move was sure to anger many Americans, but the administration figured the country could be snookered into blaming the courts.

As usual, they underestimated the nation they are governing. After intense public protest, bolstered by strong dissent from the military and the intelligence community, the president backed down. He ordered Holder to appeal the ruling but refused to issue the non-disclosure order.

With the president thus voting “present,” it was left for Congress to act responsibly. Sens. Joe Lieberman (I., Conn.) and Lindsey Graham (R., S.C.) stepped up to the plate and proposed a bill — an amendment to the Homeland Security appropriations act — that empowered the secretary of defense to issue a certification preventing the release of any photographs that “would endanger citizens of the United States, members of the United States Armed Forces, or employees of the United States Government deployed outside of the United States.”

Despite their overwhelming margins in both houses of Congress, Democrats refused to back the administration and the ACLU. They were startled by the grassroots fury. When enough of them came out from under their desks to signal support for Lieberman-Graham, President Obama’s choice was to play ball or be humiliated. He wisely decided to play ball. Lieberman-Graham became law, and the defense secretary, Robert Gates, invoked his authority under it to bar release of the photos. On Monday, in reversing the Second Circuit, the Supreme Court relied on the new law and instructed the lower court to reconsider its prior ruling accordingly.

There is a lesson here. KSM & Co. do not have to be brought to the United States — a move that would make it significantly more likely that other Gitmo detainees, trained terrorists, would be transferred here. Similarly, KSM & Co. do not have to be given a civilian trial — a move that would make it far more difficult to justify military commissions for lesser terrorists. This is not a fait accompli. It is still possible to block these developments and to induce the Obama administration to reverse itself. But doing so will require the same two things that carried the day on the photos: passion and bold congressional action.

Taking the latter first, the Constitution makes Congress the master of the jurisdiction of the federal courts. If Congress does not want the war criminals in the war it has authorized swaddled in the Bill of Rights and given the Manhattan pulpit they seek, the solution is very simple: Congress can direct that those who fit the definition of “enemy combatants” — which was spelled out in Section 948a of the 2006 Military Commissions Act — must be tried by military commission for any war crimes. That is, Congress can divest the federal courts of jurisdiction to hear these cases. Furthermore, Congress can make its will emphatically clear by denying appropriations for the transfer of detainees into the U.S. and for the trial of detainees in the civilian federal courts.

A Congress firmly controlled by Democrats will not want to take such action, any more than it wanted to rebuke the Obama administration on the photos. But the Lieberman/Graham amendment proves that if the American people assert themselves strongly enough, their political representatives will bow and stand up to their president.

Just as Obama refused to be directly accountable and issue an executive order on the photos, he is unlikely to step up and reverse the decision to give KSM a civilian trial. Nevertheless, Obama did accept the face-saving Lieberman-Graham amendment, so he’d almost certainly sign legislation divesting the civilian courts of the power to try KSM. If he refused, he’d be placing himself directly against an angry nation. I’m betting he won’t do that. President Obama is an Alinskyite: He won’t think twice about deceiving the public into acting against its interest; but, when it comes to national security, he doesn’t have the spine to impose his agenda on a public galvanized against him.

Neither Obama nor Congress will be moved unless Americans register their discontent in the strongest terms. At high noon on Saturday, December 5, there will be a rally in lower Manhattan, right near the federal courthouse that KSM intends to turn into his soapbox. My friend Debra Burlingame has more about it, here. The rally will be an opportunity for us to tell Congress and the president that a nation serious about war does not treat its enemies as if they were mere “defendants.” It will be an opportunity to demand that they treat the war criminals the way we’ve been treating war criminals throughout our history: trial by military commission at a safe facility such as Guantanamo Bay.

It is disheartening that Americans must overcome not only enemies but their own government. But the spirit of liberty and the majesty of our Constitution empower us to do just that. There’s only one question: Do we have the will?

— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

Comments are closed.