Holder, Obama and the Cowardly Shame of Guantánamo and the 9/11 Trial

5.4.11

Since May 2009, when President Obama first bowed to Republican pressure on national security issues, and abandoned a plan by White House Counsel Greg Craig to rehouse on the US mainland a couple of cleared prisoners at Guantánamo who were at risk of torture if repatriated, it has been apparent that no principles are sufficiently important to the administration that officials won’t jettison them the moment that critics start howling.

After this first success with the cleared prisoners — blocking entry to the US for the Uighurs, Muslims from China’s Xinjiang province, who had been cleared for release by a US court — Republicans, and, to a lesser extent, dissenters within Obama’s own party, realized that the power to shape national security issues was in their hands, particularly when the magic word “Guantánamo” was invoked.

As a result, when a young Nigerian, apparently recruited in Yemen, tried to blow up a Detroit-bound plane on Christmas Day 2009, and the critics howled that no Yemenis in Guantánamo should be released, the President didn’t point out that this was unacceptable, and was, moreover, a call for him to endorse a policy of “guilt by nationality.” Instead, he immediately capitulated, imposing a moratorium on the release of Yemenis from Guantánamo that still stands 15 months later, and that, single-handedly, undermined the President’s own promise to close the prison.

A similar success for Obama’s critics took place after Attorney General Eric Holder announced on November 13, 2009 that Khalid Sheikh Mohammed and four other men accused of involvement in the 9/11 attacks would face a federal court trial in New York, on the same day that he announced that five other men would face trials by Military Commission at Guantánamo.

Although this announcement went down well initially, with most of the complaints coming from critics of the Commissions — myself included — who were dismayed that Obama and Holder had brought the much-criticized military trial system back from the dead, a cynical backlash soon started against the proposed federal court trial for the alleged 9/11 co-conspirators. This was orchestrated by Keep America Safe, an organization founded by 9/11 widow Debra Burlingame, rightwing pundit William Krystol, and Liz Cheney, the daughter of former Vice President Dick Cheney, which might, more appropriately, have been called “Keep America Afraid.” However, it succeeded in its mission, because, predictably by now, when the critics’ complaints were loud enough, Obama again backed down, effectively shelving the plans, and leaving Holder looking foolish.

Nevertheless, the Attorney General at least maintained some principles. Aware of the significance of the trial of Khalid Sheikh Mohammed and his alleged co-conspirators, Holder told Jane Mayer of the New Yorker last February that he was “determined not to capitulate on the idea of holding a 9/11 trial.” Mayer’s report continued:

“I don’t apologize for what I’ve done,” he told me at one point. “History will show that the decisions we’ve made are the right ones.” Holder said that he regarded trying Khalid Sheikh Mohammed in a courtroom as “the defining event of my time as Attorney General.” But, he added, “between now and then I suspect we’re in for some interesting times.”

Those “interesting times” have seen Holder’s boss make no effort to fight back against his critics, so that, by the end of last year, supporters of Guantánamo in Congress were so emboldened, and so certain that Obama would do nothing to oppose them, that they inserted provisions into an important military spending bill explicitly prohibiting the administration from bringing Guantánamo prisoners to the US mainland to face a trial — specifically mentioning Khalid Sheikh Mohammed by name, in case anyone missed the point.

When the bill was passed, Obama could have vetoed it and fought to remove the offending provision, or he could, more contentiously, have issued a signing statement refusing to accept it, but predictably he did neither, meaning that Khalid Sheikh Mohammed and his co-accused would either remain in Guantánamo without facing a trial at all, or that the President would accept that he had been bullied into putting them forward for trial by Military Commission.

Announcing the bullying option on Monday, Eric Holder did not even bother to disguise his disappointment. He began by explaining that, when he had examined the best option for the trial in 2009, he had done so with an open mind, and had concluded that “the best venue for prosecution was in federal court.” He added, pointedly, “I stand by that decision today,” and then provided a compelling defense of the federal court decision:

[W]e were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators — one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor. We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws. We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence. Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Holder then proceeded to condemn Congress for interfering in the decision for political reasons, generously citing the President’s complaint that these “unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security,” but primarily expressing his own dismay far more eloquently, and inadvertently revealing how, in contrast, nothing that relates to Guantánamo is of particular importance to Obama, who has not spoken with conviction on the topic since becoming President:

Decisions about who, where and how to prosecute have always been — and must remain — the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.

Although Holder proceeded to express faith in the Commissions as a system capable of delivering justice, his preference for federal courts was apparent, as he launched into a passionate defense of federal court trials, which was prompted by “a number of unfair, and often unfounded, criticisms.” This was probably a reference to the way in which Republican critics tried to make political capital out of the federal court trial of Ahmed Khalfan Ghailani, the only Guantánamo prisoner brought to the US mainland (in May 2009), whose recent conviction and life sentence was portrayed by critics as a failure, because the judge barred the use of evidence derived through the use of torture (as he is required to do by law), and because the jury threw out all but one of the 285 counts against Ghailani.

In his defense of the federal court system, Holder wrote:

[F]ederal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system.

In conclusion, Holder lamented that the 9/11 case “has been marked by needless controversy since the beginning.” As he proceeded to explain, “the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points,” but should “always [have] been about delivering justice for [the] victims of [9/11], and for their surviving loved ones. Nothing else.”

This is another poor day for justice, in an administration that has been marked by an absence of good news when it comes to dealing appropriately with national security issues. Eric Holder deserves only faint praise overall, because of the way in which he was evidently involved in sheltering Bush administration lawyers from prosecution for their involvement in the “torture memos” of August 2002, and for his failure to oversee the Guantánamo habeas legislation, which has proceeded as aggressively as if Bush was still in power. On the 9/11 trial, however, and through his obvious exasperation with a political climate in which terrorism — when related to Guantánamo — is shamelessly played by political opportunists or seized upon by rightwing ideologues who have whipped themselves up into an unseemly frenzy of hysteria and paranoia, Holder at least continues to express a belief in certain principles, however rmuch he has been obliged to ignore them.

Elsewhere in the administration, and particularly in the actions of Barack Obama, who has consistently failed to provide leadership when it is needed, there has not even been a glimmer of recognition that certain principles have been lost, and that, it seems to me, ought to be a cause for great concern as the cheerleaders for Guantánamo — and for the false thesis that terrorists are warriors who must be tried in war crimes trials — score another victory at Obama’s expense.

Andy Worthington is the author of The Guantánamo Files: The Stories of the 774 Detainees in America’s Illegal Prison (published by Pluto Press, distributed by Macmillan in the US, and available from Amazon — click on the following for the US and the UK) and of two other books: Stonehenge: Celebration and Subversion and The Battle of the Beanfield. To receive new articles in your inbox, please subscribe to my RSS feed (and I can also be found on Facebook, Twitter, Digg and YouTube). Also see my definitive Guantánamo prisoner list, updated in July 2010, details about the new documentary film, “Outside the Law: Stories from Guantánamo” (co-directed by Polly Nash and Andy Worthington, on tour in the UK throughout 2011, and available on DVD here — or here for the US), my definitive Guantánamo habeas list and the chronological list of all my articles, and, if you appreciate my work, feel free to make a donation.

As published exclusively on the website of the Future of Freedom Foundation.

50 Responses

  1. Andy Worthington says...

    On Facebook, Sherry Frank wrote:

    Very good read thanks for sharing.

  2. Andy Worthington says...

    Jorge Guillermo Gajardo Rojas wrote:

    What are the difference between Guantanamo history in this facts and Dachau in Nazi Germany?
    Including Guantanamo has is own Dr Mengele

  3. Andy Worthington says...

    Monique D’hooghe wrote:

    shared and dugg

  4. Andy Worthington says...

    John Burgan wrote:

    Good post Andy. Seems that Godwin’s Law is still in force, though.

  5. Andy Worthington says...

    Eugene Hernandez wrote:

    how can they hold fair trials after all that torture?

  6. Andy Worthington says...

    Well, they can’t hold fair trials, to be honest, Eugene. However, they obviously have all the evidence they need to secure convictions without relying on any of the long years of torture, and if, as a result, they were prepared to hold trials that would lead to the closure of Guantanamo and would also draw a line under the years of torture, then I’d be prepared to let them proceed.

    It’s what I hoped when the federal court trials were announced in November 2009, and I maintain that all the scaremongering was especially ridiculous because, to be frank, no American jury would hesitate to convict KSM and his alleged co-conspirators if just the merest shred of something resembling actual evidence was produced.

    This doesn’t, of course, mean that it’s actually acceptable to play a conjuring trick on the torture, and nor, for a minute, does it mean that there is any excuse for not holding the Bush administration’s torturers to account, under the lame excuse that we must look forwards and not backwards, but it is, I think, the only realistic manner in which we might have seen Guantanamo brought to an end.

  7. Andy Worthington says...

    On Digg, cosmicsurfer wrote:

    THANK You Andy, for continuing to write truth; The dishonor of the US Government – The POTUS has proven less than what was promised. Non-deserving of the hope that so many of his supporters had held and even less than what the world held.
    Obama is continuing to appease those uneducated, willfully ignorant and arrogant few who would support breaking our own laws and destroying or own constitution if it meant getting their pound of flesh no matter who has to give it.

  8. Andy Worthington says...

    Back on Facebook, June Maxi Marshall wrote:

    How much has it cost since the beginning when Owebama declared we would hold the trials in New York through today when it was decided to hold them at Military Commissions? Another waste of our tax dollars!

  9. Andy Worthington says...

    Michael Tuck wrote:

    Stop twisting your knickers into an uproar, June. You want to start throwing blame, start with Bush/Cheney, who started this illegal, unconstitutional garbage years before you ever started gibbering about Obama’s birth certificate. And considering it was Bush/Cheney who ran up the biggest national deficit in human history, you Bushies have no business crying about “tax dollars being wasted.”

  10. Andy Worthington says...

    George Kenneth Berger wrote:

    I shall share this later today, Andy.

  11. Tom Usher says...

    Very powerful, Andy!

  12. Andy Worthington says...

    Thanks, Tom. Much appreciated.

  13. Andy Worthington says...

    Tony Smith wrote (in response to 8, above):

    I don’t think ‘wasting tax dollars’ is really the crux of the issue, compared to a fair trial.

  14. Andy Worthington says...

    So I reposted this on Facebook after the stats were wiped out when I corrected a typo in the URL (and that, my friends, will hopefully be my nerdiest comment all year!) and here, as a result, are some new comments:

    David M. Sloane wrote:

    But, but, but President Obama can’t do ANYTHING wrong! Just ask the Obamabots here on FB. They will tell you he farts Febreeze.

  15. Andy Worthington says...

    Amir Khan wrote:

    Thank you the repost Andyworth, I did miss it on Monday. Shared as always.

  16. Andy Worthington says...

    David M. Sloane wrote:

    shared

  17. Andy Worthington says...

    Mike TruthandjusticeWhen wrote:

    Take a good look at holder and chertoff are YOU FREEKING KIDDING ME. obama NO DIFFERENT. We got owned by Israel? NWO? Iluminati? … CLINTONS…bUSH>>>> MF GGI

  18. Andy Worthington says...

    David M. Sloane ‎wrote:

    Mike WTF does Israel have to do with Gitmo?

  19. Andy Worthington says...

    George Kenneth Berger wrote:

    I’m sharing this now.

  20. Andy Worthington says...

    Thanks, everyone. I wouldn’t normally repost an article, but the 56 people who’ve already shared this indicate to me that many people missed it on Tuesday. Thanks again for getting the word out, as this is, sadly, a key moment for giving up on Obama as someone who can roll back the crimes of the Bush administration — or hold anyone accountable — and it was particularly dismal that the announcement came on the same day that Obama announced that he would stand again for President! Does he have a tagline for 2012? “Sh*tting on Muslims like a Republican since 2009,” perhaps?

  21. Andy Worthington says...

    Martin Weymouth wrote:

    Obama was a ‘plant’. He was just what the US populous wanted. A black president. And didn’t he come in fine. All those promises of change and a new way of doing things. but what has changed? Absolutely nothing. Gitmo is still there as are the troops in iraq and afghanistan and now. . . . Libya. He’s just another US president warmonger but with a black face. what does anyone really know about him? Why are they trying a 9/11 suspect in Guantanamo? Why not in a US court? Really it’s the whole Bush administration who should be on trial at La Hague just like Karadic, Milosovic and Charles Taylor. after all 9/11 was an ‘inside job by the Bush administration, The CIA and the FBI.

  22. Andy Worthington says...

    Carla Herwitz wrote:

    I could not agree more. President Obama got corrupted before reaching the Oval offfice and he’s too smart for that, so it’s greed. My Governor, Deval Patrick is just as bad. I really wanted those men to keep their promises, be telling the truth. But the politicians don’t run the country anyway

  23. Andy Worthington says...

    Niaz Khan wrote:

    These people are hypocrites, after years of torturing people and killing them they now say they disagree with GBay and similiar Yankee prisons and “want to” close them down or do false enquiries into this. What hypocrites!

  24. Andy Worthington says...

    David M. Sloane wrote:

    Martin, Obama is BLACK? If he was any less ethnic he would be Marie Osmond.

  25. Andy Worthington says...

    Vcubed Inaru wrote:

    Sigh. Again, WE did not organize to push our congress critters to close Guantanamo. Obama could not do it as an executive order and survive to be re-elected BECAUSE the GOP organized a concerted opposition AND DEMOCRATIC senators and house reps were chickenshit and joined the GOP in omg terrorists in our midst hysteria. Again, WE failed to push for what we say we believe in. The Teaparty is laser-focused. We are scattered chatterers with little discipline. We have Democrats opposing women’s rights, Democrats fighting for fossil fuel corporations, Democrats fighting for banks and Wall St, Democrats fighting to KEEP Guantanamo open.

  26. Andy Worthington says...

    That, my friend, is an excellent analysis. Thank you.

  27. Andy Worthington says...

    Meenakshi Sharma wrote:

    ‎”When the bill was passed, Obama could have vetoed it and fought to remove the offending provision, or he could, more contentiously, have issued a signing statement refusing to accept it, but predictably he did neither, meaning that Khalid Sheikh Mohammed and his co-accused would either remain in Guantánamo without facing a trial at all, or that the President would accept that he had been bullied into putting them forward for trial by Military Commission.’….I remember during election in his speech, ” I will close down the Guantanmo..” still as you stated Andy he has done nothing so far, he could have vetoed the bill but did nothing..all I know is these people will stay definitely in prison….

  28. Andy Worthington says...

    Thanks, Meenakshi. Yes, that’s the long and the short of it. They stay definitely in prison. Who knows until when? Nearly ten years already! What a great shame …

  29. Andy Worthington says...

    Virginia Simson wrote:

    The MurKan public has an allergy to discussing WAR CRIMES. The antiwar movement went down the tubes when the ILFPF just refused to carry the banner on this forward. People did mobilize after the Abu Ghraib photos to get new reps elected who then immediately began drinking Nancy Pelosi’s Koolaid. Threats were made on Conyers, I am just sure of it. IMPEACHMENT off the table, remember folks? The Dems are just “not ready” to be held accountable for the WAR CRIMES they committed. I agree people should have been more pushy, but they just WOULD NOT occupy Conyers’ office, the only reasonable alternative at the time. Do not blame me for all the f*ck ups; I wrote long, hard and with total passion on this topic, went the distance and ended up homeless for my blog. The lines got blurred between HUMAN RIGHTS for everyone and being “antiwar” in the corporate media when it came to us. PSYOPS everywhere, all the time, all day long .. Notice how little you hear exposure of WAR CRIMES being mentioned re Bradley Manning to see what I mean. Andy became our best and most fervent advocate and for THAT we admire him and always shall.

  30. Andy Worthington says...

    Willy Bach wrote:

    Thanks again Andy. I feel too much despair to make further comment right now. I am disgusted.

  31. Andy Worthington says...

    Thanks, Virginia, for that compelling explanation (in contrast to 25, above) of what happened to those who did struggle to fight for what was right, as opposed to those who didn’t, and for your support of my work over the last five years.
    And Willy, I rarely see you at a loss for words, but on this — after so many disappointments previously, and with this as the crowning climbdown, if you like — I find it readily comprehensible.

  32. Connie says...

    More reason to be ashamed to be an American.

  33. On Guantánamo And Torture, Campaigners Send Letter To Justice Department – OpEd « Eurasia Review says...

    [...] Obama deals another blow to hopes that he will close the prison, as he promised, this time refusing to try the alleged 9/11 co-conspirators in a federal court, as his Attorney General wanted — and announced 16 months ago — and as he himself claimed to [...]

  34. Andy Worthington says...

    David M. Sloane wrote:

    Everyone on this thread you don’t understand the role of POTUS as LEADER of his Party. See Johnson, Lyndon Baines for an illustration of how a REAL Leader runs things.

  35. Andy Worthington says...

    Virginia Simson ‎wrote:

    David, the uber rich and the corporatocracy are firmly entrenched since Raygun. The government does not even run things any more. The Bilderbergers made the call as to HiLIARy versus Obama. Track the “leaks” from their last meeting to see what is up. The HUBRIS of Barry is his absolute narcissicism; but the Bilderbergers will determine who runs, not him. He is not expected to “run” anything at all. I DO understand it, all too well. My proposed Constitution pushes states’ rights and the obligatory prosecution of WAR CRIMES as well as THREE Presidents responsible to We the People – and to make homelessness abolished by statute. We need to TAX THE RICH and end the wars. No President is going to do that, but the solution to this country’s problems is really quite simple. Ditto the UK. http://www.facebook.com/note.php?note_id=169681356411641

  36. Andy Worthington says...

    Thedissident Rags wrote:

    Do you get the feeling they don’t want us to know the truth about 9/11?

  37. Andy Worthington says...

    Ciudadano Kane Kane wrote:

    Certainly…Andy, hope you are getting better…and better…

  38. Andy Worthington says...

    Andy Worthington wrote:

    I am. Thanks, Ciudadano.

  39. Andy Worthington says...

    Dennis Dixon wrote:

    Good piece Andy. I would only say that Obama “caved in” when he hired Wall Street to “solve” the financial collapse (besides keeping the permanent War in progress and so forth) We need this kind of analysis.

  40. Andy Worthington says...

    Malcolm Bush wrote:

    I’m sorry I’ve not been on here for a few days. It would seem Andy Worthington is getting better, I hope he’s OK now. I’ve a couple of ‘Get Well Soon’ cards left over; I’ll send them to some of those in the US Administration, suffering from acute hypocrisy.

  41. Andy Worthington says...

    Thedissident Rags wrote:

    You’re going to need a shitload!

  42. Andy Worthington says...

    Malcolm Bush wrote:

    Yes, you’ve got a point there. I am limited by cost, but i’ll do my best.

  43. Andy Worthington says...

    Thedissident Rags wrote:

    How about the hire of Jeffrey Immelt? Pretty relevant to understanding which way Obama is leaning. It’s not to the common folk, i can tell you that!

  44. Andy Worthington says...

    Thanks, Dennis and Malcolm. Much appreciated. And Malcolm, I am indeed on the mend. My apologies for not thanking you for the “get well soon” card, which was a kind and thoughtful gesture. My son in particular loves the cartoon hamster with the googly eyes …

  45. Andy Worthington says...

    For this article in Portuguese, I thank my friend Murilo Leme, who has translated it and made it available on his website, Translations: http://zqxjkv0.blogspot.com/2011/04/fff-commentaries-holder-obama-and.html

    This is the opening paragraph:

    Desde maio de 2009, quando o Presidente Obama pela primeira vez cedeu à pressão Republicana em assuntos de segurança nacional e abandonou um plano do Assessor Jurídico da Casa Branca Greg Craig de permitir residência no continente dos Estados Unidos a alguns prisioneiros de Guantánamo liberados que corriam risco de tortura se repatriados, ficou claro que nenhum princípio é suficientemente importante para a administração a ponto de as autoridades não o deixarem de lado no momento em que os críticos começam a bradar.

  46. Andy Worthington says...

    Back on Facebook, Malcolm Bush wrote:

    I’m pleased you like the card; it has given me a new campaign idea. I already do postcards and greetings cards, apart from campaign letters. I think get well cards to those suffering from acute hypocrisy would be a new approach.

  47. Andy Worthington says...

    Malcolm, I think it’s a brilliant idea. Like much great political campaigning, it’s funny and very sharp!

  48. The 9/11 Indictment: The Case We Would Have Seen In New York Had A Federal Court Trial Proceeded – OpEd « Eurasia Review says...

    [...] = 'wpp-255'; var addthis_config = {"data_track_clickback":true};Last Monday, when Attorney General Eric Holder conceded that his dream of prosecuting, in federal court, Khalid Sheikh Mohammed, and four other men accused [...]

  49. How The US Supreme Court Gave Up On Guantánamo – OpEd « Eurasia Review says...

    [...] = {"data_track_clickback":true};Last Monday, on the very same day that the Obama administration gave up on Guantánamo, so too did the Supreme Court. As far as we know, it was not a choreographed climbdown — nor had [...]

  50. WikiLeaks Reveals Secret Guantánamo Files, Exposes Detention Policy as a Construct of Lies « Dandelion Salad says...

    [...] the government’s scaremongering rhetoric about Guantánamo — the same rhetoric that has paralyzed President Obama, and revived the politics of fear in Congress –  is actually the opposite: the anatomy of a [...]

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