The Biden-Harris Administration’s Gitmo Flip-Flop: Trading a Political Problem for a Legal Problem

“There are no solutions. There are only trade-offs.” Thomas Sowell’s always valuable words of wisdom explain the Biden-Harris administration’s dizzying volte-face on the plea bargain, announced earlier this week, that would have mostly settled the military commission prosecution against Khalid Sheikh Mohamed and two other  jihadists for their roles in the slaughter of nearly 3,000 Americans in the 9/11 atrocities.

I wrote about the now-withdrawn plea deal on Thursday.

The administration’s reversal is being portrayed as the unilateral decision of Defense Secretary Lloyd Austin. He announced “his” decision in a terse memorandum issued Friday night, when embarrassing political decisions are customarily news-dumped. Secretary Austin, cross-his-heart, did not even consider the political needs of the Biden White House or Vice President Kamala Harris’s presidential campaign, much less consult with either.

That insults the intelligence. The Biden-Harris administration is threaded with Obama-Biden administration veterans and other Lawyer Left activists who spent the Bush years undermining the very military commissions that the incumbent Democratic administration now controls. One of their main complaints was that military commissions are unilateral executive branch shows with insufficient judicial oversight. It is painfully clear that the current president is not running the executive branch and the current vice-president — while campaigning for the top job — is not up to providing unscripted answers about how the executive branch runs. Nevertheless, it remains a stubborn constitutional fact that the president is in charge of and accountable for executive branch proceedings.

The announcement of the plea bargain was the least-bad option for addressing the legal problem created by the deeply troubled commission; yet, it predictably became a profound political problem for the White House and the Harris campaign. The Powers That Be decided in retrospect that minimizing the political fallout was more important – just three months from Election Day – than dealing with the legal problem. Hence, Austin’s memo.

That doesn’t mean the intractable legal problems are going away. To the contrary, they have now been exacerbated. The terrorist “defendants” will drive a harder bargain. Having the rug pulled out from under them after finally striking a deal that took two years of negotiations will teach the defense lawyers never again to trust the military prosecutors. Henceforth, they will not indulge the pretense that the commissions are insulated from politics and chain-of-command influence.

It is true that the progressive Democratic base so slavishly placated by Biden and Harris is anti-death penalty. Yet, that has little if anything to do with the plea deal. As shown by the case of Boston Marathon bomber Dzhokhar Tsarnaev, the Biden administration has learned how to navigate that challenge – in cases so heinous that the public demands the death penalty, the administration litigates in favor of capital punishment but then imposes a moratorium on executions – thus telling Americans it is aggressively vindicating national security while assuring the left that no one is actually being put to death.

No, here the problem is not philosophical; it is rudimentary. As I’ve framed it: What to do about terrorists who should be put to death but can’t be tried?

The guilt of KSM and the other jihadists (the two others in the plea deal are Walid bin Attash and Mustafa al-Hawsawi) is undoubted. They and their al-Qaeda collaborators – living and dead – bragged about carrying out the 9/11 attacks. And for all the anti-“torture” posturing that became the Obama-Biden political narrative against the Bush-Cheney counterterrorism approach, Obama and Biden tacitly adopted much of that approach, and Democrats overwhelmingly lauded the 9/11 Commission, whose final report’s account of al-Qaeda’s history, structure, and ambitions came largely from the controversial interrogations of KSM and other well-placed terrorists.

Still, the fact that guilt is undoubted does not mean it is provable under courtroom standards.

Thanks to the Democrats’ sedulous campaign against the commissions ordered by President Bush and eventually codified by Congress (codification partially nullified by the Supreme Court), there is not much daylight anymore between the due process standards of civilian and military court proceedings. But even when military commissions were more peremptory (see, e.g., Ex Parte Quirin, the case of Nazi saboteurs – including at least one American citizen – summarily executed during World War II), a trial worthy of the name could not be infected by evidence derived by forcible and degrading interrogation.

Moreover, it remains an unavoidable fact that much of the credible information about the enemy gathered outside the United States during wartime is going to implicate national-defense secrets, as well as intelligence sources and collection methods. These cannot be exposed in court proceedings – military or civilian.

The result, as I contended in Thursday’s column, is that if your operating assumption is going to be that the worst enemy actors – jihadists who make a mockery of the laws of war while mass-murdering civilians – may not be put to death in the absence of a trial, then you are going to find yourself interminably detaining those enemy actors (here, for over 20 years) because you may not be able to try them to conviction but you can’t conceivably release them.

That’s where we are. It was not because of anti-death-penalty bias that the Biden administration offered the jihadists a plea deal with capital punishment taken off the table. It was because, once the court inevitably rules that much of the evidence prosecutors want to use is inadmissible, there may not be enough proof to convict at trial. That would not mean the terrorists are innocent – far from it. But it would be a national humiliation, far more infuriating for the nation and the 9/11 families than the plea deal would be. It would be a public relations coup for anti-American jihadists. It would be a disaster.

That’s why the administration offered the plea deal – why I have argued that it is the least-bad option at this late date. The terrorists would plead guilty to the thousands of murders, which – “torture” evidence notwithstanding – would put great pressure on the commission panel of military officers to sentence them to life imprisonment. There would be a sentencing proceeding next year, but no trial and thus no possibility of acquittal.

Now, all bets are off.

Naturally, a number of top Republicans, including Senate Minority Leader Mitch McConnell (R., Ky.) and Senator Tom Cotton (R., Ark.), scalded the administration over the plea deal. It’s election-year politics, and it obviously worked. But tellingly, GOP leaders did not say what they would do differently to make the challenges of an eventual trial disappear. Unless I’ve missed something, the Trump campaign was prudently tight-lipped about the plea deal, perhaps aware that there is not a good answer to the What would you do differently? question – and that the press, deeply in the tank for Harris, would ask him that tough question, even if it never asks her.

Grousing over the plea deal this week, the Wall Street Journal’s editors grudgingly acknowledged, “This may be the best the government can do at this point.” That’s right. With the can now kicked down the road, the government is poised to do worse at the eventual later point.

There won’t be a trial until at least 2026, but the military authority will start making key evidentiary rulings before then, and those are apt to embolden the jihadists and their lawyers. They would love a trial they could use as a soap box and at which they could eventually get acquitted. Even if they were convicted, there is no assurance that the commission would impose the death penalty (or, indeed, even impose life sentences), much less that the jihadists would actually be executed after tying the government up in years of appeals.

A heated presidential election campaign is not a good context for addressing these knotty problems. But understand: the problems don’t go away; the trade-offs just get tougher.