The five have been held in Guantanamo Bay and were charged with murder before a special military commission designed to bring terror suspects to justice. I was in the special courtroom on the military base in Cuba when KSM and the others made their first public appearance. I watched as they boasted about their role in the attacks and proudly proclaimed their guilt, declaring allegiance to Allah, chanting "God is great," and praying for destruction of the United States.
They passed notes back and forth to each other, and some of them laughed and smiled throughout the proceedings. I couldn't stop staring at KSM from the press gallery in the back of the courtroom. Without KSM, the government says, 9/11 would not have happened. And there he was, the face of evil, just sitting there breathing like everyone else.
But that was in 2008. And back in the United States, then-presidential candidate Barack Obama was slamming the system of military commissions and vowing to restore the "rule of law" in our dealings with terrorists. And when he was sworn in, President Obama announced he would close Guantanamo Bay and set a new course.
And so in mid-November, less than three months ago, Attorney General Eric Holder announced that KSM—without whom, remember, 9/11 would not have happened—would leave Guantanamo. He and the four other top plotters would be transferred from military custody, flown to New York City and stand trial for the 9/11 attacks in a regular criminal court.
The President, who used fiery rhetoric to skewer Bush's terror policies during his campaign to stoke his liberal base, was hands off. As if they were anticipating the intense criticism and opposition, administration officials helped feed the storyline that Holder was making the call on this one.
For Mr. Obama's biggest policy break in the war on terror with the Bush Administration, the President remained aloof. He stuck his foot on the pond, but he didn't jump in. There was health care, after all. And this was Holder's call.
But then there was the Christmas Day bombing attempt, the "system worked," and the real shift by Americans, as reflected in recent polls, toward a harder line on terrorism. And Congress, which can read polls if nothing else, could now be rethinking whether it wants to spend money to fly these terror suspects here to the United States for trials. The opposition quickly became an avalanche.
Today, the administration is confirming reports that they now are rethinking plans to hold the trials in Lower Manhattan. Mayor Michael Bloomberg, Police Commissioner Ray Kelly, even the state's Democratic senators, all have raised serious concerns about the hundreds of millions of dollars a trial would cost and the extraordinary disruptions a trial requiring that kind of security would bring to the city.
Once again, the Justice Department is in the position of pulling back a national security initiative after boldly proclaiming a new course, giving critics even more ammunition to argue this administration is rudderless on national security.
Remember the executive order to close Guantanamo within a year? Well, that's now impossible. Remember the administration's reversal on its announcement to release photographs of prisoner abuse at Abu Ghraib? Releasing them wasn't a good idea after all. Remember the decision to read Abdulmutallab his Miranda rights an hour after he was questioned for trying to blow up an airliner with a bomb in his underwear? None of the top intelligence officials were consulted. So let's take a look at that too, if the situation, God forbids, ever happens again.
But today's reports are the most stunning, because the announcement to bring KSM and the other four to justice in New York was the sharpest, boldest break with the Bush Administration's terror policies. There was instant criticism from Republicans, as you'd expect, but Holder stood firm. New York was the place, and the city's Democratic officials fell in line at first.
In Senate testimony days after his announcement, Holder pushed back on arguments the men could just as well face justice before a military commission in Guantanamo—a new system of military commissions, incidentally, that President Obama had signed into law. It was important, he said, to try these men in our criminal courts, just a few blocks from Ground Zero.
In that testimony, Holder tried to assure critics that KSM and the other four would be convicted. "Failure is not an option. These are cases that have to be won," he said. And if for some reason they were instead acquitted, well, the United States would just hold them indefinitely anyway.
"We would continue to hold them under the laws of war," Holder said. "We believe we have the authority to do that."
Holder flew to New York last month to tour the courtroom and the Metropolitan Correctional Complex that would hold the terror suspects. He met with Kelly and other security officials, who were identifying serious issues with the tight security measures, which would wreak havoc on the city. There would be checkpoints and snipers and roadblocks lasting a year or more. Bridges, landmarks and city transit would require constant police patrol.
With skepticism building, Mayor Bloomberg, hearing it from the city's residents, began raising concerns about cost, as did Sen. Chuck Schumer.
Did the state and local officials fail to anticipate the outrage of city residents? The severe economic concerns raised by businesses around the area? Did the administration fail to anticipate that and identify potential problems when it sought to get New York senators and city leaders on board?
Regardless of how it happened, the announcement today is yet another lesson in governing and on national security. This is no longer a campaign.
The days of fire, ready, aim are over. It's time to ready and aim first. Then fire.