Nov 14 2010

Surprise, Surprise

So much for promises to restore the rule of law. Obama Justice Department was supposed to be non-political and independent of the White House. Yeah, right and that bridge in Brooklyn is still on the market.

Opposition to U.S. trial likely to keep mastermind of 9/11 attacks in detention

Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, will probably remain in military detention without trial for the foreseeable future, according to Obama administration officials.

The administration has concluded that it cannot put Mohammed on trial in federal court because of the opposition of lawmakers in Congress and in New York. There is also little internal support for resurrecting a military prosecution at Guantanamo Bay, Cuba. The latter option would alienate liberal supporters.

The administration asserts that it can hold Mohammed and other al-Qaeda operatives under the laws of war, a principle that has been upheld by the courts when Guantanamo Bay detainees have challenged their detention.

More Bush. More War forever

And that’s why this decision almost guarantees that the AUMF just became a forever war-at least one lasting the next twenty to forty years of KSM’s life. Because the government has apparently decided to hold KSM with no more solid legal justification than the war, which judges have interpreted to be the AUMF. Which means the government is going to have to sustain some claim that that AUMF remains in effect, even if we go broke and withdraw from Afghanistan as a result (that seems to be the only thing that will make us withdraw, in spite of the fact that we’re not going to do any good there).

Nine years ago, a British Embassy employee  wrote,

As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.

The decision to hold KSM indefinitely has now flipped that equation: so long as the only justification for holding KSM is the claim we’re at war, we’ll have to remain at war.

And all those bonus powers a President gets with the claim that we’re at war? They’re all wrapped up now, in the necessity to hold KSM forever.

h/t emptywheel @ FDL


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