When President Obama decided to try five accused 9/11 conspirators in a civilian court, they were reversing one of the Bush administration's most strongly-held beliefs -- that terror suspects must be tried in a military court, with fewer constitutional protections afforded other criminal defendants.
After a barrage of pressure, it seems they are changing their position, according to Washington Post, which reports that Mr. Obama's advisors will likely recommend a military trial for the self-professed mastermind of the September 11 attacks.
President Obama initially defended the decision to try Khalid Sheikh Mohammed and four other suspects in a New York City court as a tribute to the American justice system, reports CBS News chief White House correspondent Bill Plante. But security concerns (coupled with cost estimates ranging from $100 million to $1 billion for the duration of the trial) have made standing on principle a political impossibility.
If the reports are correct, CBS News chief legal correspondent Jan Crawford said on "The Early Show" this morning, the U-turn by the Obama administration was inevitable.
"We've been seeing signs for the last couple of weeks," Crawford said. "In fact, Vice President Biden said on Bob Schieffer's show a couple of weeks ago that this is where it looked like they were going to be headed, because they were suddenly open to the idea of military commissions once again."
[On "Face the Nation" February 14, Biden said that while a civilian trial was a more effective way to deal with terror suspects, the projected high costs of security had perhaps made a trial in New York City politically untenable, and was the only reason the President was taking a military commission under consideration.]
"But keep in mind: this was the single biggest break from the Bush administration on these 'war on terror' policies," Crawford told anchor Harry Smith. "Attorney General Eric Holder, in an appearance on Capitol Hill, told senators, 'Failure was not an option -- these cases must be won, this was the course they were going to pursue.'
"So now to see them retreat on this is a failure, a failure to get through a major policy shift."
She predicted civil liberties organizations would be "absolutely incandescent" with rage over the change.
Crawford said the major difference between military and civilian trials is the admissibility of classified evidence and testimony derived through torture.
"It's much easier in these military tribunals to deal with classified evidence," Crawford said. "Think about how some of this evidence came about. You've got raids in Afghanistan, in Iraq, and people are throwing thing in garbage bags. In a criminal court here in the United States, that would be difficult to admit that evidence because you couldn't show the chain of command. That's much easier to admit in a military proceeding. Also, other classified evidence is much easier.
"I was down in Guantanamo when these five guys tried to plead guilty in a military commission," she said. "This procedure has been under way, and they were prepared to plead guilty -- they were boasting of their crimes. So now it does look like they will go back to that military commission.
On the matter of coerced testimony, Crawford said, "That is another issue that will be much easier to deal with in the military proceedings. Remember, Khalid Sheikh Mohammed, the self-confessed mastermind of 9/11, was subject to very harsh interrogation techniques -- waterboarded multiple times. That would have been a big problem in a criminal trial. Obviously he could have made motions here in the United States, if he were treated like an ordinary criminal, a drug dealer on the street corner, he could have said 'I was subjected to outrageous government misconduct, these charges must be dismissed. The government can't treat me that way.' That will be a much more difficult argument for him to make in a military commission."
Accused 9/11 Leader: I Made Up Stories After Waterboarding (6.16.09)
Crawford, however, did not accept the suggestion that, should the Obama administration backtrack on military commissions for terror suspects, it would win them favor to close Guantanamo's doors.
"I think that is wishful thinking by the White House," she said. "As this has proceeded, the American people really turned against this plan. So we may be going back to Guantanamo for these military commissions."