ACRU Senior Legal Analyst Jan LaRue wrote a column appearing July 14, 2010, on Townhall.com.
President Obama gave notice to the Democrat-controlled Congress on Sunday that unless it provides funding for a civilian trial for Khalid Sheikh Mohammed and for closing the Guantanamo Bay detention center, they will suffer the consequences. Obama is helping voters remember in November that Congress is failing to fulfill his campaign promises.
What else explains why Attorney General Eric Holder told CBS's "Face the Nation" on Sunday, "there's a real question about whether a terrorist suspect such as self-professed Sept. 11 mastermind Khalid Sheikh Mohammed can face the death penalty if he were to plead guilty before a military commission?" Holder actually scolded Congress for "the politicization of this issue, when we're dealing with ultimate national security issues, something that disturbs me a great deal."
It's a catch-22 for Congress and the latest example of the Obama administration playing politics with national security. They continue to criminalize the war on terror in a desperate attempt to appease their leftist base.
Fourteen days after Obama signed the Military Commissions Act of 2009 into law, Holder announced his decision to try KSM in Manhattan, despite expressing his praise for the Act. Holder singled out for praise Sens. Lindsey Graham, Carl Levin and John McCain for working so hard to "strengthen our national security by helping us pass legislation to reform the military commission system."
Holder expressed no concern about the Act's death penalty provision then, or in the several statements he's made about it in the last eight months. That is, until Sunday.
On the contrary, Holder told the Senate Judiciary Committee Nov. 19 that he decided to try Khalid Sheikh Mohammed and other accused 9/11 masterminds in a civilian criminal court rather than a military tribunal because that is where he believes he has the best chance of convicting them.
Holder's reasoning was absurd then and remains so now. KSM had already told a judge at Guantanamo that he wanted to plead guilty and be executed.
Holder knows, if he's read it, that the 2009 Act expressly permits guilty pleas to be entered in capital cases. It requires a unanimous vote by commission members in order to impose the death penalty. It is no more burdensome than the federal rules of criminal procedure in civil capital cases.
Congress passed the Act in response to a 5-4 Supreme Court decision in 2008 holding a section of the 2006 Military Commissions Act unconstitutional for denying habeas corpus rights to alien, unlawful enemy combatants. The Court ruling doesn't deter the use of military commissions to prosecute war crimes. Moreover, nothing in the Court's opinion hints at any problem with the government obtaining a death penalty.
Holder was also reminding Congress on Sunday of a significant change in the 2009 Act. It authorizes the President to decide whether to seek the death penalty, unlike the 2006 Act, which authorized the Secretary of Defense to make the decision.
Holder's message to Congress on Sunday implied that the President may decide against the death penalty for KSM unless Congress provides funding for a trial in federal court and the Illinois prison. Holder's "question" about the death penalty is baseless and bogus. The only "real question" is about Holder's ethics.
In his remarks to the Senate Judiciary Committee on Nov. 19, Holder had said he would seek the death penalty for terrorists in our courts and in military commissions:
We will also use every instrument of our national power to bring to justice those responsible for terrorist attacks against our people. For eight years, justice has been delayed for the victims of the 9/11 attacks. It has been delayed even further for the victims of the attack on the USS Cole. No longer. No more delays. It is time, it is past time, to act. By bringing prosecutions in both our courts and military commissions, by seeking the death penalty, by holding these terrorists responsible for their actions, we are finally taking ultimate steps toward justice. That is why I made this decision.
Congress should call Holder's bluff by asking him why, if he really thinks there's a problem with obtaining a death sentence in a military tribunal, he decided "to refer back to the Department of Defense five defendants to face military commission trials, including the detainee who was previously charged in the USS Cole bombing?"
If Holder's death penalty concern is genuine, why isn't he concerned that the murderer of 17 American sailors on the USS Cole might escape a death sentence by being tried in a military tribunal?
Holder said his decision to try the 9/11 terrorists in Manhattan was "the toughest decision I've had to make as attorney general." It may be his dumbest, but it wasn't his toughest.
Obama and Holder are frustrated that Congressional Democrats haven't made any effort to fund Obama's campaign and inauguration promises to close Gitmo. Thus, in keeping with the Chicago way, Holder publicly dared Democrats to commit political hari kari four months from the November election.
The question is whether Democrats are tough enough to blame Obama, or dumb enough to fund what two-thirds of Americans oppose.