Legal Commentary

Court Clerk-in-Chief

By Jonathan H. Adler

In response to political blowback over the Administration?s decision to try Khalid Sheikh Mohammed in New York City, President Obama has decided to become personally involved in determining where KSM should be tried. The Washington Post reports:

President Obama is planning to insert himself into the debate about where to try the accused mastermind of the Sept. 11, 2001, attacks, three administration officials said Thursday, signaling a recognition that the administration had mishandled the process and triggered a political backlash.

Obama initially had asked Attorney General Eric H. Holder Jr. to choose the site of the trial in an effort to maintain an independent Justice Department. But the White House has been taken aback by the intense criticism from political opponents and local officials of Holder?s decision to try Khalid Sheik Mohammed in a civilian courtroom in New York. . . .

Administration officials said the president?s involvement has to do with securing congressional funding for the costly trial before bipartisan efforts to strip financing for the case against Mohammed and four alleged co-conspirators gain greater momentum. They said it was a matter of national security, not just politics.

Senior White House officials said that the decision to try Mohammed in New York was Holder?s and that no single person in the administration was responsible for handling the politics of that choice. In an effort to avoid leaks, Holder kept the decision close in the days leading up to his Nov. 13 news conference, calling New York officeholders that day to inform them. Several New York officials said they have dealt exclusively with Holder, first during the rollout of the announcement and more recently as he struggles to find another venue. . . .

Obama gave little clue about how the administration will proceed when he was asked Sunday about the trial. But he made clear that, in a shift from last year, he is now part of the decision-making process, saying in a CBS interview that Manhattan was still an option. ?I have not ruled it out,? Obama said.

Like former Bush Justice Department offiicals James Comey and Jack Goldsmith, I think some of the criticisms of the Obama Administration?s decision to try KSM in a civilian court are overblown.  If trying KSM in New York City is substantially more expensive that potential alternative venues, however, I think it reasonable to move the trial elsewhere.  But I question whether it is politically advisable for the President to assume such direct responsiblity for the trial?s location.

Full post as published by The Volokh Conspiracy on February 13, 2010 (boomark / email).