**UPDATE: Democratic memo: why Barack Obama can’t close Gitmo or try KSM in New York

Accused 9/11 mastermind Khalid Sheikh Muhammad pre, and post-beard.

Democrats, particularly liberal activists, will not want to hear this. But President Obama cannot close the Bush-created prison at Guantanamo Bay, or try the remaining detainees still stuck in that island gulag, on his own. Like Don’t Ask, Don’t Tell and the Defense of Marriage Act, Gitmo is a creature of Congress, and only Congress can kill it.

Currently rileing the vocal left (and let’s face it, what doesn’t…) is the decision by Attorney General Eric Holder to stop fighting to get Khalid Sheikh Muhammad tried in a Manhattan court. Holder relented after more than two years of fighting not just Republicans, who want to see all of the Gitmo terror suspects tried via military commissions, but also Democrats, in Congress and in New York and Virginia. The story as of Monday:

The U.S. Justice Department announced Monday that a military tribunal will try the suspected mastermind of the 9/11 attacks and four other alleged conspirators at the Guantanamo Bay prison in Cuba.

Attorney General Eric Holder said his department will ask the Defense Department to hold the military trial following the dismissal by a federal judge in New York of a 2009 indictment against the suspects.

The indictment charged Khalid Sheikh Mohammed, the alleged mastermind, Walid bin Attash, Ramzi bin al Shibh, Ali Abdul Aziz Ali and Mustafa al Hawsawi with 10 counts of terrorism acts.

Prosecutors sought the dismissal of the indictment to prevent the civilian trial of the suspects at a Manhattan court. Lawmakers and the general public opposed the civilian trial in New York over fears it will endanger the public.

But far from rolling over and playing dead on KSM, as many on the vocal left have portrayed them, the Obama administration, and specifically Attorney General Holder, pushed back hard against the obstructions Congress has thrown in front of them:

Attorney General Eric Holder today placed the blame squarely on Congress for creating conditions where the Department of Justice cannot try them in a federal court, saying their decision would gravely impact U.S. national security and counterterrorism efforts.

They “tied our hands in a away that could have serious ramifications,” he said today. “In reality, I know this case in a way that members of Congress do not. Do I know better than them? Yes.”

Mohammed was to have been tried in New York City, but city officials strongly objected to the move and Congress refused to appropriate funds to house Guantanamo inmates on mainland United States and to provide funds for a trial of extraordinary expense.

Holder said he stands by his decision to try the terror suspects in U.S. federal courts, but was forced to resume the military commission because realistically, “those restrictions are unlikely to be overturned in the near future.” He added that the Obama administration still intends to eventually close the detainee center altogether, as the president had announced after becoming president.

And this:

U.S. Attorney General Eric Holder told a news conference the decision was necessary because Congress had imposed “unwise and unwarranted restrictions” that blocked the administration from bringing any Guantanamo detainees to trial in the United States.

His announcement was an embarrassing reversal of the administration’s decision in November 2009 to try Mohammed in a court near the site of the World Trade Center attack that killed nearly 3,000 people.

The decision was an admission that Obama has not been able to overcome political opposition to his efforts to close the prison for terrorism suspects and enemy combatants at Guantanamo Bay and try those accused of crimes in U.S. civilian courts.

The decision was praised by local residents in New York and many lawmakers in Congress, with Senator John McCain welcoming “the president’s decision to put aside political differences and seek an accounting for the worst terrorist attacks in our nation’s history.”

Julie Menin, who spearheaded opposition to holding the trials in New York, called the decision a “victory for lower Manhattan and my community.” New York Senator Chuck Schumer, another opponent, called it “the final nail in the coffin of that wrong-headed idea.”

In addition to McCain (the Republican) and Schumer (the Democrat), other opponents of trying KSM in New York included Michael Bloomberg (who flip-flopped on his way to opposition), Democratic Senator Kirstin Gillibrand and her colleague, Democratic House member from New York Nydia Velasquez, Democratic New York Governor Andrew Cuomo and a majority in Congress, which summarily blocked every attempt by Holder to either establish civilian tribunals for the suspects, or to move even a single detainee out of Guantanamo — even to an empty prison complex in Illinois.  And despite the public’s lack of oppostion to a civilian trial, polls don’t give Eric Holder, or Barack Obama, the power to do what Congress expressly forbids and the state and city in question actively work to prevent.

From ABC News last February, when the controversy over Holder’s proposal to try KSM in New York was running hot and heavy:

Two Democrats joined Republicans today introducing legislation to deny President Obama money to transport suspected 9/11 conspirators stateside and try them in civilian courts.

It is unclear when or how this measure would come to a vote, but it is abundantly clear that President Obama’s plan to use the American justice system to try suspected 9/11 conspirators is in serious jeopardy.

Sen. Blanche Lincoln, D-Ark, who faces a tough reelection bid, was asked by a reporter at a press conference today if the President is being “tone deaf” in asking moderate Democrats to support his plan.

“I’d be tone deaf if I didn’t speak for the people,” said Lincoln, questioning the “cost, security and appropriateness” of using civilian courts to try suspected terrorists.

The President acknowledged Congressional opposition and public opinion much in an interview broadcast Monday on YouTube. And while he said opposition to closing the prison at Guantanamo Bay has “been one of those things that’s been subject to a lot of, in some cases, pretty rank politics,” President Obama admitted that if Congress rejects his funding request, he will be hampered in his plan.

Because Congress ultimately controls the purse strings in creating new facilities. If Congress makes a decision that they are going to try to block the opening of a new facility, it potentially constrains what our administration can do,” he said.

The President included $73 million in his budget request, but added he would work with local officials to appropriate more money as necessary. New York Police Commissioner Raymond Kelly has estimated holding terror trials in New York City could reach $200 million per year for security.

Senators voted overwhelmingly in May of 2009 to strip funds for closing the Guantanamo Bay prison from a war funding bill.

Lincoln was today joined by Democratic Sen. Jim Webb, of Virginia, whose state includes the federal court where 20th hijacker Zacarias Moussaoui was tried.

Webb said today that the US should not be the criminal court for the world and argued government plans to permanently incarcerate some GTMO detainees it does not feel comfortable trying would create legal issues in the civilian court system.

“Confuses place with process,” Webb said. “The Issue is not Guantanamo Bay.”

“It’s hard to bring the people of New York City and Little Rock together but they have done that,” said Sen. Lindsey Graham, R-South Carolina, of the growing opposition to civilian trials. Graham favors trying suspected 9/11 conspirators like Khalid Sheikh Mohamed in military trials at Guantanamo Bay, where they are currently held.

To review:

- President Obama came into office in January 2009, and two days after his inauguration, he signs his first executive order, calling for the closure of the prison at Guantanamo Bay within one year.

- Less than five months later, Congress — controlled by Democrats — votes overwhelmingly to neutralize that executive order, and to keep Gitmo open, by choking off the funds needed to enact the executive order by building new facilities, seeking deportations, etc. The vote in the Senate was 90 to 6.

- In November 2009, the Obama administration tried another tack: they plan to move 100 remaining Gitmo detainees (not including KSM and other 9/11 direct suspects) to an all-but abandoned, state-of-the-art prison in Illinois. The rural town wanted the deal, and the jobs that would come with it. Again, the deal was blocked, and demogogued, by Congressional Republicans, and as of today, the “Gitmo North” plan seems to be dead on arrival.

- Then, this past December, 2010, Congress went in for the kill:

Congress on Wednesday signaled it won’t close the prison at Guantanamo Bay or allow any of its suspected terrorist detainees to be transferred to the U.S., dealing what is likely the final blow to President Obama’s campaign pledge to shutter the facility in Cuba.

The move to block the prison’s closure was written into a massive year-end spending bill that passed the House on Wednesday evening on a vote of 212-206, part of a last-minute legislative rush by Democrats to push through their priorities before ceding the House to Republican control in January.

News of the Guantanamo provision brought a quick and sharp rebuke from the Obama administration Wednesday.

“We strongly oppose this provision,” Department of Justice spokesman Matt Miller said in a statement. “Congress should not limit the tools available to the executive branch in bringing terrorists to justice and advancing our national security interests.”

Current law allows the Justice Department to bring detainees to the U.S. for trial as long as the Justice Department gives Congress 45 days notice of the transfer.

And who added the language banning Gitmo detainees being transferred to the U.S. for trial, as part of a bill that was supposed to fund Medicare, Medicaid, and expanded food safety? Wait for it … Democrats:

The Obama administration has loudly opposed a provision of the omnibus spending bill, passed last week by the House, that would ban the transfer of Guantanamo Bay detainees to U.S. soil, even for trial.

“This provision goes well beyond existing law and would unwisely restrict the ability of the Executive branch to prosecute alleged terrorists in Federal courts or military commissions in the United States,” Attorney General Eric Holder wrote in a letter to Senate leadership, calling the provision “dangerous” and asking that it be stripped before the Senate votes on the bill this week.

“We strongly oppose this provision. Congress should not limit the tools available to the executive branch in bringing terrorists to justice and advancing our national security interests,” White House spokesman Reid Cherlin said just before the bill passed.

So you would think, then, that this was perhaps a provision snuck into the must-pass government funding bill by Republicans intent on derailing Holder’s plan to try self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed in civilian criminal court.

You’d be wrong.

According to sources on both sides of the House Appropriations Committee, which had purview over the legislation, the bill was written entirely by the Democratic side. It was revealed to Republicans only hours before the vote. No amendments were allowed on the House floor. No Republicans voted for it.

Eric Holder has been battling Congress for the better part of two years to try and transfer the estimated 173 remaining detainees housed at Gitmo (of the 242 who were said to be there when Obama took over, 67 have been repatriated or transferred to other countries and two have died.) After the initial rulings favoring Habeas Corpus for Gitmo detainees, later court rulings have thrown up roadblocks. And Congress’ 2006 passage of the thoroughy odious Military Commissions Act of 2006 (which was updated and slightly improved in 2009) provides Holder and the president with the one avenue for controlling how detainees are treated, solely through the executive branch. Any other option requires Congress to appropriate the funds, to conduct the trial, build detention facilities or provide security. And since Congress, to include Republicans AND Democrats, refuse to provide the funds, and have gone further, blocking any attempt by the administration to get civilian trials going, the administration is in a box.

Contrary to what many liberals believe, President Obama does not posess autocratic power; nor did George W. Bush. Bush got away with dramatic incursions on civil liberties because he had the consent of Congress, not over its opposition. Congress after 9/11 was eager to go along with almost any expansion of the natioanl security state that Bush and his authoritarian crew could propose. Democrats went along with Bush and Republicans on attacking Afghanistan, invading Iraq, the PATRIOT Act, and even on domestic wiretapping, for which Congress legally indemnified cooperating phone companies, and on torture, which Congress not only refused to investigate or told hold Bush administration officials, to include judges like Jay Bybee the president and vice president, accountable via impeachment, but which also, at the leadership level, apparently signed off on the torture of KSM.

And it’s that torture that may be at the heart of Democratic objections to bringing KSM and other 9/11 suspects to trial in civilian court. In such a court, torture evidence would almost certainly be sought to be introduced by the defense. People could wind up embarrassed. And national security could be threatened if KSM’s defense causes information to get out and into the ears of potential terrorists, who may seek reprisals against U.S. interests or citizens.

All of those considerations are likely a part of the reason there will be no civilian trial for KSM in New York. But that doesn’t mean that the administration cannot, and should not, utilize the provisions in the Military Commissions Act that allow for the trials to proceed according to the Uniform Code of Military Justice.

If the administration does that, and gets through the trials quickly and transparantly, that, I think, will be better than leaving Khalid Sheikh Muhammad and other detainees to languish indefinitely at Gitmo, which make no mistake, is the lone alternative Congress has left us.

To be clear: Barack Obama vowed to close Gitmo, and took concrete steps to try and do so. But he could not have anticipated the obstruction that would come from his own side in Congress — not on the campaign trail in 2007 and 2008. Once in office, he was confronted with that obstruction almost immediately, and tenaciously.

Is there a way that the president can vault over Congress and bring KSM to trial in New York? The answer is no; not without directly violating numerous edicts passed by Congress (which back in the Bush days, liberals would have considered impeachable.) And the idea that “Bush did it” is more of the liberal fiction that George W. Bush routinely defied Congress, when in fact, Congress colluded with him on national security policy every step of the way.

UPDATE: Wow. Dahlia Lithwick reems the Obama administration, in one of the most breathtakingly disingenuous pieces of writing I’ve ever read on Slate. The most egregious clip:

Say what you want about how Congress forced Obama’s hand today by making it all but impossible to try the 9/11 conspirators in regular Article III courts.* The only lesson learned is that Obama’s hand can be forced. That there is no principle he can’t be bullied into abandoning. In the future, when seeking to pass laws that treat different people differently for purely political reasons, Congress need only fear-monger and fabricate to get the president to cave. Nobody claims that this was a legal decision. It was a political triumph or loss, depending on your viewpoint. The rule of law is an afterthought, either way.

No need to “say what you want” — Congress’ blocking of a civilian trial IS the point. Yes, any president’s hand can be “forced” by a plain reading of a directive passed by Congress. In this case, multiple times, including in an omnibus budget package just three months ago. Obama signed that budget, and so it is law, including the provisions on civilian trials. The administration fought for two years to find a way to try KSM in Manhattan, and were blocked, financially and materially, by Congress. Lithwick pretends that’s a convenience, rather than a rather important fact. In the very link Lithwick provides in her post, the Atlantic’s Chris Good writes this:

What had changed?

Aside from the pressure applies by conservative politicians and the objections of New York’s top Democratic lawmakers, the administration faces a new restriction barring Guantanamo detainees from entering the U.S.

Congress passed the restriction as part of its most recent Defense authorization bill in December, and President Obama signed it in January, announcing in a signing statement that he would work to repeal the restriction.

Holder today suggested that the administration no longer had a choice of where to hold the KSM trial: Repealing those restrictions would take time, and a trial needs to start soon. “We simply cannot allow a trial to be delayed any longer,” Holder said.

He did not mention the more likely reality: That the White House might not be able to repeal the restriction at all, and must instead wait for next year’s Defense Department funding bill.

In other words, having had the civilian trial option literally closed off by Congress, the White House should have done what, in Lithwick’s estimation? Because the only other option was to allow KSM and the other suspects to languish in Guantanamo prison for another year, while they wait for another shot at getting the money through the next defense appropriations bill. With the way the regular budget is grinding its way throug the tea partied-up Congress now, with a shutdown very likely at this point, I’m not sure how Lithwick thinks that would get done.

For his part, Andrew Sullivan acknowledges the facts, but barely:

… it’s fair to say that because of insane hysteria, whipped up by Republicans, Obama had little choice. He has been barred from closing Gitmo by the Congress and couldn’t overcome the panic of people like Mayor Bloomberg to find a place for a civilian trial. But I agree this is another sad concession to the politics of fear; and yet another rebuke to the politics of hope.

Yes, and I hope Democrats elect a better crop of Washington representatives, who will roll back this policy after 2012 and stop blocking the normal system of justice from proceeding.

Alex Massie, meanwhile, simply pretends that Eric Holder changed his mind on the KSM trial for entirely different reasons than the very simple one he finally gets to in an update to his post about the sorriness and sadness of the Obama “retreat.”

Folks, we have reached the upper echelons of disingenuous on both the left, and the formerly Obamaphilic part of the right.

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16 Responses to **UPDATE: Democratic memo: why Barack Obama can’t close Gitmo or try KSM in New York

  1. Sepia says:

    Excellent break down, Ms. Reid! Thank you!

  2. LKT says:

    Thank you. This is very much how I thought I remembered how things went down. For some reason, the media & some on the left have complete amnesia even after Holder pointed out yesterday why he had to make this decision. The repubs, they lie about everything so bs was expected from them. The rest of em, oh brother, it’s gonna be a loooong election season.

  3. Flo says:

    LKT is right; the crap spewing out of Mitch McConnell’s mouth is insulting to his subjects. (I’ll refrain from Kentucky jokes at this point.)

  4. proudfoot says:

    Thank you, thank you, and thank you for a wonderfully well written truth be told in your face article. I generally like Maddow but she kind of angered me last night with her Gitmo segment literally saying that it’s Obama’s fault that gitmo isn’t closed totally forgetting that Congress put in place provision which makes it difficult and hard to try the gitmo detainee’s.

    The other aspect that I find interesting is that American’s are delusional into thinking that POTUS has the sole power to do everything they want w/out any regards to the fact it’s Congress who writes and make the laws.

    Being on the left I gotta admit that I totally totally agree with your assessment.

  5. jreid says:

    Thanks all, and especially have to agree with this:

    American’s are delusional into thinking that POTUS has the sole power to do everything they want w/out any regards to the fact it’s Congress who writes and make the laws.

    spot on, proudfoot.

  6. David says:

    Thank you for this sane, brilliant post! I’ve been so frustrated with the vague complaints from some in Democratic quarters about the president’s performance. Really, this is a breath of fresh air, and I’m now a dedicated reader!

  7. Allan says:

    Thanks for this clear summary, Joy. I’m sharing it widely via Twitter and Facebook. In the face of Maddow, Ezra Klein and Adam Serwer with their strangely coordinated message that studiously ignores the role of Congress, we need more people to read and follow your work.

  8. Monika Kehrer says:

    Excellent article & summary. I’m so tired of liberals complaining about Obama not closing Gitmo. He obviously tried really hard, but doesn’t really have the authority. I understand Republicans not wanting to give Obama a victory in this matter, but I was very surprised to learn that the Senate voted so overwhelmingly to block the executive order and “save face.” Such a shame.

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