No Comment — March 5, 2010, 11:27 am

Rahm’s Masterstroke

Meet Barack Obama’s new attorney general: Rahm Emanuel. The Associated Press reports:

In a potential reversal, White House advisers are close to recommending that President Barack Obama opt for military tribunals for self-professed Sept. 11 mastermind Khalid Sheik Mohammed and four of his alleged henchman, senior officials said. The review of where and how to hold a Sept. 11 trial is not over, so no recommendation is yet before the president and Obama has not made a determination of his own, officials said. The review is not likely to be finished this week. Officials spoke Thursday on condition of anonymity because they weren’t authorized to discuss private deliberations.

Attorney General Eric Holder decided in November to transfer Mohammed and the four other accused terrorists from the prison at the U.S. naval base at Guantanamo Bay, Cuba, to New York City for civilian trials. That was initially supported by city officials, but was later opposed because of costs, security and logistical concerns. When opposition ballooned further into Congress and an attempted Christmas airline bombing brought massive scrutiny to Obama’s terrorism policies, the administration said it would review Holder’s trial decision and consider all options for a new location. In addition to local opposition to a trial, the administration faces pressure on its goal of closing Guantanamo on another front. Republicans in Congress have proposed barring prosecutions of terrorism defendants in federal courts or in reformed military commissions located in the United States.

As long rumored, Emanuel appears to be pursuing his deal with South Carolina Senator Lindsey Graham, under which Khalid Sheikh Mohammed and a group of prisoners tied to 9/11 will be tried before a military commission and not a federal court, in exchange for Graham’s support for closing Guantánamo.

Why is this effort such a big deal? After all, Obama has consistently said that cases could go either to the military commissions or to federal courts. Eric Holder has said that military commissions might also be appropriate for the 9/11 defendants. But these developments put the White House and its relationship with the Justice Department in a new light:

  • In sharp violation of rules of prosecutorial conduct and ethics, political figures in the White House are engaged in the micromanagement of decisions concerning the prosecution of individual criminal defendants. Rahm Emanuel is a political figure, without any serious legal expertise or abilities. He openly presented the question as a matter of political opportunity—thereby infecting the criminal justice system with political horse-trading. This is more than just unseemly. It presents a direct affront to the integrity of the criminal justice system. After eight years in which Karl Rove manipulated essential prosecutorial decisions at Justice, now his successor is engaged in the same type of misconduct. But unlike Rove, Emanuel does it openly.

  • The attorney general’s decision as to where and how to go about presenting these cases, which rested on the professional analysis of the Justice Department, is being overturned as part of a political deal. Emanuel is placing the attorney general in a humiliating position where the only honorable thing he can do is resign. That’s a masterstroke for a White House chief of staff.

  • Emanuel’s implicit assumption that this bargain will loosen up opposition to the closing of Guantánamo looks highly problematic and perhaps even foolish. By agreeing to try these high-profile cases before a military commission, he is actually strengthening the hand of those insisting that Guantánamo be kept open—because the infrastructure for these trials is already in place at Guantánamo.

  • Emanuel is reinforcing the growing public impression that the Obama White House isn’t serious about any of the high principles Obama articulated during the 2008 presidential campaign, and instead is prepared to compromise on any of them for some short-term and doubtful tactical advantage in Congressional votes.

Rahm Emanuel’s amen chorus at the Washington Post want to present him as a skillful dealmaker who can get things done and who understands the art of compromise. But if his scheme goes into effect, he will do tremendous damage to the administration’s reputation with some of its key constituencies. Will he get anything in exchange? That’s unlikely. Some deal. Some chief of staff.

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