"A divided federal appeals court in Washington, D.C., on Friday tossed out an agreement that would have allowed 9/11 terror mastermind Khalid Sheikh Mohammed to plead guilty...."

"The 2-1 D.C. Circuit appeals court decision upheld then-Defense Secretary Lloyd Austin’s decision to undo the plea deal approved by military lawyers and senior Pentagon staff. The deal would have carried life without parole sentences for Mohammed and two co-defendants, potentially taking capital punishment off the table.... [L]egal concerns stemmed from whether the original plea deal was legally binding and whether Austin waited too long to get it dismissed. The court found Austin indisputably had legal authority to withdraw from the agreements because the promises made in the deal had not yet been fulfilled, and the government had no adequate alternative remedies...."

The NY Post reports.

"The Pentagon carried out the secret operation in the early hours of Monday..."

"... days before Guantánamo’s most notorious prisoner, Khalid Shaikh Mohammed, was scheduled to plead guilty to plotting the Sept. 11, 2001, attacks that killed nearly 3,000 people in exchange for a life sentence rather than face a death-penalty trial. The handoff had been in the works for about three years. An initial plan to conduct the transfer in October 2023 was derailed by opposition from Congress. The 11 who were released included Moath al-Alwi, a former long-term hunger striker who gained attention in the art world for building model boats from objects found at the Guantánamo prison; Abdulsalam al-Hela, whose testimony was sought by defense lawyers in the U.S.S. Cole case; and Hassan Bin Attash, the younger brother of a defendant in the Sept. 11 conspiracy case...."

From "U.S. Sends 11 Guantánamo Prisoners to Oman to Start New Lives/The secret mission left the smallest number of prisoners at Guantánamo Bay since the day the detention center opened in 2002" (NYT).

"President Biden has rejected a list of proposed conditions sought by the five men who are accused of conspiring in the Sept. 11, 2001, terrorist attacks..."

"... in exchange for pleading guilty and receiving a maximum punishment of life in prison, according to two administration officials....  The case has been bogged down in pretrial proceedings in Guantánamo Bay, Cuba, for more than a decade.... In talks with prosecutors, defense lawyers said Khalid Shaikh Mohammed, the accused mastermind, and four other defendants wanted certain accommodations, including assurances they would not serve their sentences in solitary confinement and could instead continue to eat and pray communally — as they do now as detainees at Guantánamo Bay. The prisoners also sought a civilian-run program to treat sleep disorders, brain injuries, gastrointestinal damage or other health problems they attribute to the agency’s brutal interrogation methods during their three to four years in C.I.A. custody before their transfer to Guantánamo Bay in 2006...."

From "Biden Rejects Proposed Conditions for Plea Deals in Sept. 11 Case/Five Guantánamo detainees accused of aiding the attacks wanted a promise of care for torture-related trauma and to avoid solitary confinement" (NYT).

"... Mr. Biden took no position on the general notion that a plea deal could eliminate the possibility of death sentences...."

The administration's refusal to give Congress access to the Benghazi witnesses.

On today's "Fox News Sunday," Lindsay Graham was talking about his threat of blocking all the President's nominees in the Senate until Congress is given access to the witnesses to the Benghazi attack.

CHRIS WALLACE: OK. So, when you and other senators -- because you're not along in this -- asked to talk to the survivors... or to read the interviews that the FBI conducted within hours after the attack... what does the administration say to you?

GRAHAM: They say it's an ongoing criminal investigation, which is stunning. Under that theory, we would not be able to look at 9/11 and to Khalid Sheikh Mohammed was prosecuted. He's still not even going to trial....

Under that theory there would not have been Watergate hearings!

GRAHAM: Can you imagine if this was George W. Bush and he told the Congress after 9/11 -- you can't talk to anybody because there's a potential criminal investigation, we're not going to investigate how 9/11 became the failure that it was?

"Mohammed, wearing a white turban and a flowing beard, refused to answer the judge's questions..."

"His lawyer said he believed Mohammed was not responding because he believes the tribunal is unfair."

ADDED:

“When detainees stand up, the guards get antsy,” [said Army Col. James Pohl, the tribunal’s president.] “I will note for the record that Mr. bin al Shibh appears to be standing and kneeling outside his chair.”

"Consider how the intelligence that led to bin Laden came to hand."

"It began with a disclosure from Khalid Sheikh Mohammed (KSM), who broke like a dam under the pressure of harsh interrogation techniques that included waterboarding. He loosed a torrent of information—including eventually the nickname of a trusted courier of bin Laden."

Writes former U.S. Attorney General Michael Mukasey.

The harsh techniques themselves were used selectively against only a small number of hard-core prisoners who successfully resisted other forms of interrogation, and then only with the explicit authorization of the director of the CIA....

Former CIA Director Michael Hayden has said that, as late as 2006, even with the growing success of other intelligence tools, fully half of the government's knowledge about the structure and activities of al Qaeda came from those interrogations....

The Obama administration has ended these interrogations and is investigating CIA employees who conducted them.

Eric Holder is asked but won't answer whether he'd have opposed a military trial for bin Laden if bin Laden had been taken alive.

Testifying before the House Judiciary Committee:

“That’s a hypothetical. I’m not sure it’s particularly relevant,” Holder said in response to a question from Rep. Dan Lungren (R-Calif.)....

“I think it’s fair to ask, since you opposed a military trial for Khalid Sheikh Mohammed, whether you would have opposed a military trial for Osama bin Laden,” Lungren said.

Again declining to answer, Holder said that his position on military tribunals has often been mischaracterized. He noted that, on the same day in November 2009 that he announced a civilian trial for Mohammed, he announced that five other detainees would get military trials.

“I think our military commissions, especially since they’ve been modified, are constitutional and can give fair trials,” he said.

Holder also pushed back against another line of questioning from Lungren, about whether information provided by detainees who underwent “enhanced interrogation techniques” like waterboarding contributed to finding bin Laden. Holder said there was “a mosaic of sources” of intelligence, and he did not go into details.

The failure to answer speaks for itself. To me, it says that he considers it wrong/illegal but wants it done anyway. Wants it done, but doesn't want to be the one to say "do it."

ADDED: Let's remember that last month, after Obama announced that KSM would be tried before a military commission in Guantanamo, that Eric Holder was adamant about the correctness of his original decision to try him in federal court in Manhattan. He blamed Congress for making it impossible to do that, and he basically stomped out of the room when asked about it.

And in March, 2010, Holder avoided the question of how he'd deal with a captured bin Laden: "The reality is that we will be reading Miranda rights to the corpse of Osama Bin Laden - he will never appear in an American courtroom." Pushed, he got angry:

When Rep. John Culberson (R-Tex.) said that if Bin Laden himself were arrested, it would be absurd to give him the same due process afforded Manson, Holder erupted.

Charges he coddles terrorists get his "blood boiling," the attorney general conceded....

Holder repeated - slowly - to the Texas congressman that "the possibility simply does not exist" that Bin Laden will ever be arraigned in any court....

"The possibility of capturing him alive is infinitesimal - he will be killed by us or he will be killed by his own people," Holder said.

So... was bin Laden shot because he resisted — the official story — or because a live, captured bin Laden would have torn the Obama administration apart?

"Khalid Shaikh Mohammed to Be Tried by Military Commission at Guantánamo, in Reversal."

That's the right way to do it, Obama comes around to admitting, by coincidence, on the day he launches his reelection effort.

ADDED: What would it take for Obama to say Bush was right... or anything close to that... just a decent amount of respect for his predecessor?

AND: Here's the link to the NYT article, indicating that the decision represents no real judgment by Obama or Attorney General Eric H. Holder Jr., but simply yielding to Congress's "steep new restrictions on transferring any detainees from Guantánamo Bay onto United States soil, making such a trial impossible."

UPDATE: Holder speaks (live).

ADDED: Holder is adamant that his original decision was correct. Congress made it impossible for him to follow his original policy. The last question challenged him about how long it will take: perhaps another 10 years? He answers quickly and testily and — to my eye — stomps out of the room.

"The Washington Post today reported that the Obama administration has given up on any hope of prosecuting Khalid Sheihk Mohammed in Lower Manhattan."

"Moreover, there is apparently little appetite in the administration to revive plans to try KSM via military commission, and they may simply allow Mohammed to remain incarcerated at Guantanamo Bay indefinitely, without trial."

After all the bold talk in the campaign, Obama apparently has no idea what to do with the detainees. Or, that he had ideas, but they encountered reality. Why not reach out to newly reddened America by saying Bush actually got it right and proceed with the military commissions?

According to Bush, Abu Zabeta wanted all "the brothers" to be waterboarded until they broke so they, like him, would get "the chance to be able to fulfill their duty."

I think this is the most interesting thing George Bush said in the interview with Matt Lauer that aired on NBC last night. The topic was waterboarding, which Bush said he believed was legal "because the lawyer said it was legal." The technique was used to get information from Khalid Sheik Mohammed, who, they had good reason to think, had valuable information, it worked to "save lives," and his job was "to protect America and I did." Then Matt Lauer brought up "another guy you write about in the book, Abu Zabeta, another high profile terror suspect":

LAUER: He was waterboarded. By the way, Khalid Sheikh Mohammed was waterboarded, according to most reports, 183 times. This guy was waterboarded more than 80 times. And you explain that his understanding of Islam was that he had to resist interrogation up to a certain point and waterboarding was the technique that allowed him to reach that threshold and fulfill his religious duty and then cooperate. And you have a quote from him. "You must do this for all the brothers." End quote.

BUSH: Yeah. Isn't that interesting?

LAUER: Abu Zabeta really went to someone and said, "You should waterboard all the brothers?"

BUSH: He didn't say that. He said, "You should give brothers the chance to be able to fulfill their duty." I don't recall him saying you should water-- I think it's-- I think it's an assumption in your case.

LAUER: Yeah, I-- when "You must do this for--"

BUSH: But…

LAUER: …"All the brothers." So to let them get to that threshold?

BUSH: Yeah, that's what-- that's how I interpreted.

What do you think really happened? Was Abu Zabeta's quote fabricated? Was it real, but some kind of sarcastic taunt? Perhaps it was his way to justify himself, after he'd caved to pressure, by saying that under his principles, he'd done his duty. Bush seems to interpret it to mean that the detainees would appreciate being waterboarded until they broke so they could fulfill their duty.

That got me thinking about John McCain. This is from his 2008 speech accepting the GOP nomination:

A lot of prisoners had it worse than I did. I'd been mistreated before, but not as badly as others. I always liked to strut a little after I'd been roughed up to show the other guys I was tough enough to take it. But after I turned down their offer, they worked me over harder than they ever had before. For a long time. And they broke me.

When they brought me back to my cell, I was hurt and ashamed, and I didn't know how I could face my fellow prisoners. The good man in the cell next door, my friend Bob Craner, saved me. Through taps on a wall he told me I had fought as hard as I could. No man can always stand alone. And then he told me to get back up and fight again for our country and for the men I had the honor to serve with. Because every day they fought for me.

I fell in love with my country when I was a prisoner in someone else's. I loved it not just for the many comforts of life here. I loved it for its decency; for its faith in the wisdom, justice and goodness of its people. I loved it because it was not just a place, but an idea, a cause worth fighting for. I was never the same again. I wasn't my own man anymore. I was my country's.

No one would wish to be tortured/subjected to enhanced interrogation, but, after the fact, human beings find ways to process the experience. It's generally known — isn't it? — that at some point everyone breaks, and the standard answer to the shame of breaking is that you held out as long as you could. Both Abu Zabeta and John McCain understood their experience that way. I fell in love with my country when I was a prisoner in someone else's. How much of the rest of McCain's thoughts were mirrored in the mind of Abu Zabeta?

"Yeah, we water-boarded Khalid Sheikh Mohammed.... I'd do it again to save lives."

George W. Bush said in a Q&A at the Economic Club of Grand Rapids on Wednesday.

Eric Holder would like you to think he's a tougher fighter than George Bush.

Recall what George W. Bush said a week after the 9/11 attacks:

"I want justice," he said after a meeting at the Pentagon, where 188 people were killed last Tuesday when an airliner crashed into the building. "And there's an old poster out West that says, 'Wanted: Dead or Alive.' "

He then seemed to temper his remarks by adding: "All I want and America wants is to see them brought to justice. That's what we want."

The blunt, Texas-style rhetoric, delivered off the cuff, came a day after Vice-President Dick Cheney said he would willingly accept bin Laden's "head on a platter". Some advisers said that although the comments might be popular in America, they would not be welcomed by European or Arab allies.

Mr Bush had just received a briefing on the call-up of military reservists and plans for Operation Noble Eagle, the name given to the "war on terrorism" that the president has vowed to prosecute.

Striking a sombre tone, he told Americans they should expect further casualties. "The United States military is ready to defend freedom at any cost," he said. "We will win the war and there will be costs."

Bush was criticized harshly over the years for saying "Wanted: Dead or Alive." At the end of his term, Bush expressed regret about talking like that:

"I regret saying some things I shouldn't have said," Bush told CNN's Heidi Collins when asked to reflect on his regrets over his two terms as president. "Like 'dead or alive' and 'bring 'em on.' My wife reminded me that, hey, as president of the United States, be careful what you say."

Now, here's Attorney General Eric Holder, at a House hearing yesterday:

"The reality is that we will be reading Miranda rights to the corpse of Osama Bin Laden - he will never appear in an American courtroom," the nation's chief enforcement officer told a stunned House hearing....

GOP congressmen tried to pummel the nation's top law enforcement official over giving terrorists the same constitutional rights in civilian courts as American defendants, such as the now-unlikely lower Manhattan trial of 9/11 mastermind Khalid Shaikh Mohammed.

Holder said terrorists are treated like the murderers they are in federal courts - or, more specifically, "like Charles Manson."

When Rep. John Culberson (R-Tex.) said that if Bin Laden himself were arrested, it would be absurd to give him the same due process afforded Manson, Holder erupted.

Charges he coddles terrorists get his "blood boiling," the attorney general conceded....

Holder repeated - slowly - to the Texas congressman that "the possibility simply does not exist" that Bin Laden will ever be arraigned in any court....

"The possibility of capturing him alive is infinitesimal - he will be killed by us or he will be killed by his own people," Holder said.

So, Bush, in the immediate aftermath of 9/11, called for the capture of bin Laden "Dead or Alive," but Holder, with 9 years to meditate on the right way to deal with the situation, assures us that bin Laden will not be taken alive. What has brought Holder to this heated state of mind? Not the death of thousands of Americans. The threat to his political prestige. It gets his "blood boiling" that he is attacked. The fact that we were attacked did not loom large when he decided to try KSM in federal court New York City. But when that decision was savaged, he changed his tone.

He needed to show how tough he was, and now he's resorting to saying that bin Laden won't be taken alive. Oh, he concedes an "infinitesimal" possibility. What does that mean? If bin Laden openly surrendered or he was trapped and utterly defenseless, we couldn't gun him down. And then what would Holder do? Read Miranda rights to bin Laden's not-yet-a-corpse? Try him like a Manson? Ah, but Holder doesn't want you to think about that. He suddenly wants to strike the Dick Cheney bring-me-his-head-on-a-platter pose... until we stop calling him weak, his blood cools down, and he can get back to lecturing us about America's abstract ideals.

"If the White House retreats from a civilian trial of Khalid Sheik Mohammed and the others..."

"... not only is it terribly weak optics in the short run, but it cements in the public mind for the long term all the worst fears Republicans have not just been able to sow, but will continue to sow. Think of the worst possible scenario for what would have happened to New York City, no matter how remote, then insert that into a campaign ad. There's no way to disprove what might have been. Human nature will be to focus on the bullet that we supposedly dodged. Whereas if you actually suck it up and proceed with the trial, it takes all the wind of out that sail. People still go to work, buildings don't fall down, the ground doesn't open up and swallow Manhattan. Democrats show they're strong and resolute and the issue goes away."

That's David Kurtz at Talking Points Memo, whose agitation is manifested in metaphor. Don't retreat from the optics. Don't cement the fears. Don't let them write a bad scenario and say we dodged a bullet. Take the wind out of their sails. Suck it up. Open up and swallow!

But enough about metaphors. Look at what David "The Horror" Kurtz is really saying: Obama should not do what he thinks is right but what will be most effective at avoiding damaging criticism. Ah, but what about people like me, DTHK, who will criticize him for doing things mainly to dodge criticism? Then maybe Obama can get back to just doing what he thinks is right — not because it's right, mind you, but because it's the best way to dodge criticism. That would be cool or ridiculous or something.

Now, open up and swallow.

Is President Obama the victim of "the stubborn complexity of his national security inheritance"?

That's Scott Shane's angle in the NYT:

For much of President Obama’s first year in office, his national security team worked to devise a secure plan to send dozens of Yemeni detainees held at Guantánamo Bay, Cuba — the largest single group at the prison camp — home to Yemen, perhaps to a rehabilitation program....

Since November, the administration had been preparing to move the highest-profile Guantánamo prisoners — Khalid Shaikh Mohammed and four accomplices accused of plotting the Sept. 11, 2001, attacks — to Manhattan for a federal criminal trial.

It seems to me that the President is the victim of his own ideas about how to do things differently. If he had graciously accepted the inheritance left by George Bush, he wouldn't have had either of these problems. He squandered an inheritance that he failed to value!

Bush — despite his reputation for simplicity — did understand the complexity of the problem, and he had a solution. There was stability. After posturing about "change" in his political campaign, Barack Obama seemed to think that he could apply the immense power he had won to changing things in the real world. And there is no blaming Bush for failing to know the difference between what sounds good and what works well.

George Bush — the extreme contrast to Barack Obama — knew that he was doing a lot of things that didn't sound good and left him open to harsh criticism, but he made a decision early on to accept that and to do what he thought was right. He didn't get enough credit for that. Maybe he will some day. But he also avoided the torrent of justified criticism that would have fallen on him if there had been further terrorist attacks.

Fortunately, there is a limit to how far Obama will go in his dream world of "hope and change." I voted for Obama, but the Obama I voted for was Obama the Pragmatist. I'm glad to see OTP finally emerging, even if part of his pragmatism is blaming Bush. But he will throw that aside if it doesn't work, which it shouldn't. For now, I'm glad he's making some better decisions... even as those freed detainees roam around Yemen.

ADDED: Click and scroll here for all my "Obama the Pragmatist" posts. Like, remember in August 2008 when Joe Biden assured us that Obama "is a clear-eyed pragmatist who will get the job done"? And then there was the time I said:

Forced to choose between Clinton and Obama [in the Wisconsin primary], I voted for Obama — even though he stated positions that were farther from what I want than Clinton's — because I thought he had more mental flexibility and pragmatism, that he was more likely absorb and process evidence and advice and exercise sound judgment.

John Yoo and Jay Bybee are cleared of anything but "poor judgment" in a report that was "softened" by a senior Justice Department official.

Newsweek reveals the findings of the report from the Office of Professional Responsibility:

While the probe is sharply critical of the legal reasoning used to justify waterboarding and other “enhanced” interrogation techniques, NEWSWEEK has learned that a senior Justice official who did the final review of the report softened an earlier OPR finding. Previously, the report concluded that two key authors—Jay Bybee, now a federal appellate court judge, and John Yoo, now a law professor—violated their professional obligations as lawyers when they crafted a crucial 2002 memo approving the use of harsh tactics, say two Justice sources who asked for anonymity discussing an internal matter. But the reviewer, career veteran David Margolis, downgraded that assessment to say they showed “poor judgment,” say the sources. (Under department rules, poor judgment does not constitute professional misconduct.) ...

A Justice official declined to explain why David Margolis softened the original finding, but noted that he is a highly respected career lawyer who acted without input from Holder....

So it wasn't a political decision, we're being told. It wasn't that the Obama administration would like  the "torture memo" issue to go away. But consider this new development in the larger context:

For weeks, the right has heckled Attorney General Eric Holder Jr. for his plans to try the alleged 9/11 conspirators in New York City and his handling of the Christmas bombing plot suspect. Now the left is going to be upset...

And the 9/11 trial isn't going to be in NYC anymore.

Suddenly, it's obvious that Khalid Sheikh Mohammed should not be tried in NYC.

I mean, it was always obvious, wasn't it? But suddenly, Obama can see it. I guess the gesturing was worth it — or would have been worth it if people had enthused sufficiently. But they didn't, and reality actually leaked in. Cool.

Lindsey Graham devastates Eric Holder.

Crushing:



Holder imagines that he can hide inside that "thoughtful" routine that Obama so often relies on, but it is utterly pathetic here. Either he knows damned well what he's doing and he's lying or he's outrageously unqualified for his job. His evasive style is so similar to Obama's that he makes Obama look worse.

Holder holds forth.

On the KSM trial.

Another occasion for the "Obama is like Nixon" tag.

Politico reports:

“I don't think it will be offensive at all when [Khalid Sheikh Mohammed is] convicted and when the death penalty is applied to him,” Obama told NBC’s Chuck Todd.

When Todd asked Obama if he was interfering in the trial process by declaring that Mohammed will be executed, Obama, a former constitutional law professor, insisted that he wasn’t trying to dictate the result.

“What I said was, people will not be offended if that's the outcome. I'm not pre-judging, I'm not going to be in that courtroom, that's the job of prosecutors, the judge and the jury,” Obama said. “What I'm absolutely clear about is that I have complete confidence in the American people and our legal traditions and the prosecutors, the tough prosecutors from New York who specialize in terrorism."

Journey back to 1970:

Nixon Calls Manson Guilty, Later Withdraws Remark; Refers to Coast Murder Trial in Talk in Denver, Then Says in Washington He Didn't Mean to Prejudge Case

...

President Nixon asserted today that Charles Manson, a hippie cultist now on trial in California, "was guilty, directly or indirectly, of eight murders without reason."

But, faced with criticism that he had prejudged the outcome of the Manson trial, Mr. Nixon issued a statement ... saying that "the last thing I would do is prejudice the legal rights of any person, in any circumstances."

***

Googling, I saw that this isn't the first time someone has compared something Obama did to the old Nixon/Manson screwup. Back in July, the comparison was made after Obama said the "police acted stupidly" in arresting Professor Henry Louis Gates, Jr.

From that July article:

Robert Dallek, a presidential historian, said in an interview that Nixon’s comments, while seemingly a gaffe, reinforced his stance in the prevailing cultural wars and seemed calculated. “He was playing to the whole idea that conservatives stand for law and order and Democrats were permissive and indulgent toward criminals,” Mr. Dallek said.

So, what do you think?

When Obama said KSM will be convicted and executed, what was he doing?
	Making a gaffe.
	Trying to send the message that he's tough on terrorism.
pollcode.com free polls

"Obama admits Guantanamo won't close by Jan. deadline."

WaPo headline.

Well, then, I have won the bet I made with Emily Bazelon last January:



And I'm glad Guantanamo will be kept open. It's needed and useful. But Obama is being weaselly about it:

"People, I think understandably, are fearful after a lot of years where they were told that Guantanamo was critical to keep terrorists out," Obama said. Closing the facility, he added, is "also just technically hard."

Obama came to office pledging to shut a detainee facility that had become a symbol for prisoner abuse at the hands of American officials. He signed orders to shut the military prison by January 2010, but White House officials quickly encountered resistance from members of Congress opposed to moving prisoners to U.S. soil and from other countries they had hoped would accept detainees.

It's Bush's fault for making people fearful, don't you know? It's not that he's actually come to see the value of the place.

There was also a tangle of legal issues involving what to do with suspected terrorists who had been tortured in prison in a way that jeopardized the integrity of the evidence against them, or who for other reasons could not stand trial.

Last week, the administration announced that it will try five Guantanamo prisoners -- including Khalid Sheik Mohammed, the self-declared mastermind of the Sept. 11, 2001, attacks -- in federal court in New York. The fate of dozens of other detainees remains in limbo.

So, presumably, this new announcement was timed to follow last week's announcement that KSM would be tried in NYC. Maybe what came first was the realization that Guantanamo would need to remain open, and then something was needed to placate those who put their hope in Obama that he would close the place. Oh, what will we do? I've got an idea! Let's put on a show! Let's try KSM in NYC!