The Guantanamo diversion

In the first week of his administration, President Obama announced that he would close the Guantanamo detention facility within a year -- part of a larger repudiation of George W. Bush’s policies in the war on terror. Today, however, Guantanamo is still open, and Obama is reportedly considering reneging on what would be the most powerful assertion possible of U.S. commitment to the rule of law -- civilian trials for Khalid Shaikh Mohammed and other alleged 9/11 conspirators. If this is a trial balloon, it deserves to be punctured.

When Atty. Gen. Eric H. Holder Jr. announced in November that Mohammed and his confederates would be tried in a civilian court, he emphasized that the accused would “be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.” Placing so much emphasis on the venue of the trial was a mistake, and not just because of the subsequent backlash from, among others, Mayor Michael Bloomberg. As we noted at the time, the “where” of the trial was less important than the “what” -- a proceeding that would show the world that the United States was confident enough in its system of justice to afford the defendants the full protections of American law.

Lately, however, the administration, which has planned all along to try other terrorism suspects before military commissions, has been hedging on whether there will be a 9/11 civilian trial anywhere. The political reasons for such a reconsideration are obvious: Obama has been savaged by conservatives who oppose the idea of civilian trials for his supposed lack of resolve against terrorists.

Enter Sen. Lindsey Graham (R-S.C.), who reportedly has a deal for the administration: Move the 9/11 trials to military commissions, and Graham will help the administration resist moves in Congress to block the closing of Guantanamo.

This is an offer that Obama can, and should, refuse. Though a great improvement over the system established by Bush, the commission process provides fewer rights to defendants. For example, it allows hearsay evidence and, in some cases, coerced confessions. Equally important, however, commission trials would be viewed around the world as a continuation of Bush’s policy of establishing a “legal black hole” for detainees. What’s more, it isn’t even clear that Graham can persuade other Republicans to support closing Guantanamo.

In recent days the president has abandoned his passivity on healthcare legislation and led the charge for comprehensive reform. He needs to display a similar stiffening of the spine when it comes to Guantanamo and terrorism trials.