We should’ve put them to death in 2008, when it was a realistic option.
On Friday night, Defense Secretary Lloyd Austin quietly reversed the Pentagon’s decision to reach a plea deal with 9/11 architect Khalid Sheikh Mohammed and two of his co-conspirators, Mustafa al-Hawsawi and Walid bin Attash.
That deal was going to ratify what is almost guaranteed to be life terms in detention. But this election-season decision presented a political headache for Kamala Harris’s campaign, when it was assailed as another example of the Biden-Harris administration’s weakness in national-security matters.
The plea-deal debacle is not, though, the result of that weakness.
As Andy McCarthy put it, the deal “was the least-bad option for addressing the legal problem created by the deeply troubled commission.” In 2024, such a deal, however unsavory in theory, may have been the only way to avoid a flawed military commission process that would give the terrorists their best chance of one day winning something short of a lifetime sentence.
The issue here goes back to the Obama-Biden administration’s drive to close Guantanamo Bay.
During an appearance before a military tribunal in 2008 — under the Bush administration’s hard-won formulation of that panel — KSM and the others opted not to retain legal counsel and said that they were eager to get the death penalty.
But the first step in President Obama’s effort to close Gitmo was to shutter the commission and attempt to move the trials to federal criminal courts — where prosecutors would face a higher evidentiary standard and where we would have to provide liberal discovery of our intelligence files on al-Qaeda.
Congress objected and blocked the transfer of the detainees to America to face trial in a federal courtroom, and the military commission was resurrected. This time, the plotters chose to lawyer up and turn the trial into a referendum on America’s treatment of unlawful enemy combatants obviously guilty of mass murder. Thus, Obama forfeited America’s best chance at executing the 9/11 plotters.
Former attorney general Eric Holder, a leading member of the team behind that failure, took a break from picking Harris’s running mate last week to take an undeserved victory lap in the media.
Holder noted that the officials behind the “awful” deal played the strongest hand they had. But he added: “If my decision to try KSM and his confederates in the tested and effective federal court system had been followed they would be nothing more than a memory today.”
Put more accurately, if the administration in which he served had not endeavored to try them in federal court, they would’ve faced execution much sooner in a venue fit for their unlawful combatant status.
Instead, the ongoing debacle has taken yet another twist.