It's one of the most explosive decisions of the Obama administration so far—prosecuting Khalid Shaikh Mohammed and four other suspected 9/11 terrorists in a civilian court in New York instead of a military tribunal. And it's a risky move both substantively and in political terms.
Republicans are saying the decision will revive voter concerns that the Democrats are weak on national security, an allegation that the GOP has used effectively for many years. Former Vice President Dick Cheney jumped into the fray when he said the Obama administration has forgotten the lessons of 9/11 and "reverted back to the old mind-set, that a terrorist attack is a law enforcement problem." Cheney told conservative radio-show host Scott Hennen, "We had 3,000 dead Americans that day. That is not a law enforcement problem. That's an act of war, and you need to treat it as an act of war." Cheney said President George W. Bush adopted this aggressive war-fighting strategy, and it "paid off in safety for the homeland for eight years." He added: "I can't for the life of me figure out what [Attorney General Eric] Holder's intent [is] here, in terms of having Khalid Shaikh Mohammed tried in a civilian court, other than to, to have some kind of show trial, and they'll simply use it as a platform to argue their case."
Other Republicans agree with Cheney. "Holding it in New York is a dumb move. The problem is that this needlessly exposes New York to danger," argues a former adviser to a Republican president. One result, he says, could be to encourage a jihadist to take out his or her anger on everyday citizens in another terrorist act. Or an extremist on the right could try to attack one of the suspects as revenge for 9/11. At minimum, all this could make much of New York into an armed camp during the trial, at vast cost and inconvenience. In addition, critics say that there is the likelihood that Mohammed and his cohorts will use the trial as a forum to spew hatred and to condemn America.
The nightmare scenario is for the defendants to plead innocent and use the civilian system to gain an acquittal. At a Senate Judiciary Committee hearing , Republicans raised many of these criticisms. Sen. Jon Kyl of Arizona noted that Mohammed, alleged to be the mastermind of 9/11, has already said he would plead guilty in a military trial and wanted to be executed. Why risk losing the case in civilian court, Kyl asked, when it would seem to be so easy to get a conviction in a military venue?
Holder said he wouldn't base his prosecution on the "whims and decisions of a murderer." He also expressed confidence that New York will do a good job providing security, as it has done in other terrorism-related cases over the years. He expressed faith in the judicial system and predicted that the court will find the defendants guilty and sentence them to execution.
A senior Democratic strategist says the Republicans are being hypocritical because many of them supported civilian trials for terrorists in the past. "This is just a knee-jerk reaction, and it's B.S.," he adds. "But when the trials end in convictions and the death penalty, what will the Republicans do then?"
The issue is extremely emotional. "Bringing terrorists from Guantánamo Bay to New York City, on American soil, which our troops have bled for, fought and died to protect, is a huge insult to those troops who have sacrificed so much," says an open letter to President Obama from some families of 9/11 victims and other advocates of a strong national defense. "We sent them thousands of miles away to destroy a threat, but you have decided to invite that very threat, Jihad, into this country." The letter was posted on the Move America Forward website.
Republican strategists say they will use the issue against Democratic congressional candidates in the 2010 elections in a variation on the theme used throughout the 1980s and 1990s: that the Democrats can't "keep us safe."