Reversal, capitulation, weakness: Obama, Congress, and the trial of Khalid Shaikh Mohammed

By Michael J.W. Stickings

There was much ado yesterday over the Obama Administration's apparent "reversal" with respect to where and how to try 9/11 mastermind Khalid Shaikh Mohammed and four others involved in the attacks. They will be tried not in a civilian court but before a military commission at Gitmo.

The NYT's Charlie Savage called it "a major policy reversal," suggesting that the White House "abandoned [its] plan amid a political backlash." While "[t]he shift was foreshadowed by stiffening Congressional resistance to bringing Guantánamo detainees into the United States, and by other recent steps clearing the way for new tribunal trials,... it marked a significant moment of capitulation in the Obama administration's largely frustrated effort to dismantle counterterrorism architecture left behind by former President George W. Bush."

Reversal. Capitulation. Apparently it's all Obama's fault.

But is it? Savage goes on to note that Attorney General Holder "stood by" his initial determination that KSM et al. should be tried in a civilian court. "He criticized restrictions imposed by Congress last year that banned the military from using its funds to transfer detainees to domestic soil, even for trials."

Well, that's it, isn't it? It's not what Obama did, it's what Congress did to limit his options. Steve Benen explains:

Holder told reporters [yesterday] afternoon that his original decision was still the right one, but blamed Congress for "tying our hands."

He happens to be right. Even today, Holder wants to do the right thing, and so does President Obama. And yet, Gitmo is open today, and KSM will be subjected to a military commission in the near future, not because of an administration that backed down in the face of far-right whining, but because congressional Republicans orchestrated a massive, choreographed freak-out, and scared the bejesus out of congressional Democrats. Together, they limited the White House's options to, in effect, not having any choice at all.

There's plenty of room for criticism of the administration, but those slamming Obama for "breaking his word" on this are blaming the wrong end of Pennsylvania Avenue.

This is not to excuse how Obama has handled "national security" so far. In many respects he has maintained the Bush-Cheney national security state, including some of its worst elements. And, of course, Congressional opposition to trying accused terrorists in civilian courts gives him cover. He (or Holder) can blame Congress, an easy target. Obama (and Holder) could have pushed harder to get what they supposedly want, just as they could push harder to close Gitmo, but they don't want to.

It's sort of like how Obama could have pushed harder for a public option to be included in the Affordable Care Act or for earlier DADT repeal. He always blames Congress for tying his hands, even though he's the one with the bully pulpit (and significantly greater popularity than either party in Congress).

Yes, Steve is right. Congress deserves the blame for this. But let me qualify that. Congress deserves much of the blame for this. Because Obama deserves some of it as well.

As CBS News is reporting, "Obama said last month that he remained committed to trying terror suspects in federal courts," yet he also "approved the resumption of military trials for detainees at the Guantanamo prison, ending a two-year ban." Yes, yes, his hands were tied, what else could he do? I get that. It's hard to get very far with Republicans and cowardly, appeasement-minded Democrats blocking him.

The problem is that, with respect to national security and the "war on terror," Obama hasn't done nearly enough to secure our trust, to suggest that, regardless of what Congress does, he isn't just a somewhat softer replica of his predecessor. It may be correct in this case to blame Congress, but if the president really wants to move away from Bush-Cheney, on terrorist trials or otherwise, he needs to show the necessary leadership to make it happen. Because it just isn't all that presidential to throw your hands up in frustration, whether you mean it or not.