WASHINGTON – The Republican chairman of a key House judiciary panel said Tuesday it was the “dogged determination and endless activism” of Congress that forced the Obama administration to shelve plans to try 9/11 conspirators in federal court, returning to the military commissions favored by the Bush administration.
The hearing came on the heels of the surprise announcement from Attorney General Eric Holder Monday that the government will try accused 9/11 mastermind Khalid Sheikh Mohammed and five collaborators in a military commission rather than federal court.
The reversed policy means military lawyers and judges will once again resume control of the fate of the alleged 9/11 mastermind, three years after the Obama administration announced a plan, and then withdrew it amid public outcry and congressional opposition, to move the case to federal court.
Wisconsin Republican James Sensenbrenner, chairman of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, praised Congress’ efforts “which brought this administration to the path of reason and common sense.”
But Rep. Robert Scott, D-Va., said military commission proponents like them “just because it sounds tough” and criticized Congress for leaving the administration with no practical alternative to the commissions.
Committee members heard testimony from legal experts and the father of a 9/11 victim, but they
primarily questioned George Washington University Law professor Stephen Saltzburg about his opposition to military commissions.
Saltzburg said taking the cases to a military commission is an insult to federal courts, which have already prosecuted 400 terrorism cases. Thus far only six cases have gone before military commissions.
While Saltzburg agreed with House leaders that convictions are more likely on military commissions, he questioned trying Mohammed as a war criminal through the commission process, saying it grants him special distinction. “The last thing that he and his co-conspirators want is to be treated as a common criminal,” Saltzburg said.
Andrew Theen/MNS
David Beamer is angry about how both the Bush and Obama administration handled the 9/11 terrorism cases.
But David Beamer, father of United Flight 93 victim Todd Beamer, expressed dismay at what he termed Holder’s indifference to 9/11 families. “The families were already tired of waiting when the Obama team arrived on the scene. Alleged concern for the plight of the families is Mr. Holder’s most contemptible conceit.”
Beamer said the time for justice is long overdue. “It’s shameful, it’s disappointing. It hurts,” he said to applause from the hearing audience and Rep. Dan Lungren, R-Calif. Sensenbrenner reprimanded the crowd for breaking House rules.
Much of the questioning centered on the Military Commission Act of 2009, a series of revisions to the commissions process that both sides see as an improvement, with increased emphasis on due process and rights for the so-called unprivileged enemy belligerents. But Saltzburg said it is a double-edged sword. “One of the problems with creating a new system is nobody knows how it will turn out in the end.” He said the appeals process is also more cumbersome and confusing in the military system.
Charles Stimson, a former Bush appointee at the Pentagon now serving as legal affairs counsel at the conservative Heritage Foundation, applauded the administration’s about-face, but said now is the time to stand firm and offer the commissions more resources. But he cautioned that patience is still needed. “The goal should not be swiftness, justice isn’t swift, it’s fairness.”
In a telephone interview, Dave Schlueter, a former Judge Advocate General Corps attorney and professor at St. Mary’s Law School in San Antonio, said he supports the administration’s decision to hold the hearings at Guantanamo Bay, Cuba. He said the words military commission come with a lot of baggage, and the choice of locale doesn’t help. “I think the fact that it’s being held at a naval base in another country looks bad.”
Whether or not Mohammed gets the death penalty is another thorny issue. Schleuter said it’s uncommon for military commissions to accept guilty pleas and then render a death penalty without extraordinary cooperation from defendants. “It presents a very sticky problem.”
The change in policy comes six months before the 10th anniversary of the 9/11 attacks, and Schleuter and others argue that there is no end in sight to the legal battle.
“It would not surprise me that it’s going to drag on.”