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On the afternoon of January 29, 2010, a bleak, cold day in Washington, Barack Obama’s top counterterrorism and political advisers gathered in the White House Situation Room. Obama arrived a few minutes late, wearing his customary game face. There was no small talk, just a crisp beckoning from the president for the group to take their seats. Some noticed a slight spring in his step—perhaps because he’d just returned from a feisty sparring session with House Republicans at their annual retreat in Baltimore. Otherwise the mood in the White House was grim. Two days before, New York mayor Michael Bloomberg had abruptly withdrawn his support for the administration’s plan to try 9/11 mastermind Khalid Sheikh Mohammed and four coconspirators in a federal court in downtown Manhattan. Obama knew Attorney General Eric Holder’s initiative was politically fraught. Now, its thin layer of cover had been stripped away. Bloomberg’s about-face sparked a full-blown congressional revolt. Obama was being lacerated on the cable news shows and the op-ed pages for “criminalizing” the war on terror, and for the decision to bring one of the world’s most infamous terrorists into the heart of New York City. Yet the president knew that if he retreated from the plan to try Mohammed in federal court, he would be excoriated by liberals for abandoning the rule of law and perpetuating the policies of George W. Bush.
Obama had been elected as a change maker—“change we can believe in.” He promised, among many other things, to move America “beyond the politics of fear.”
He had campaigned as the anti–George W. Bush: he would close the Guantánamo Bay detention facility, end preventive detention, and bring terrorists to justice in civilian courts, among other sweeping changes. The United States would show the world that America was a nation of laws, not unchecked powers. Yet the challenges Obama faced upon taking office one year earlier were dominated by a financial crisis greater than any since the Great Depression, and he was determined to put health care reform at the top of his agenda. Health care costs represented an economic threat, and at the same time, the crisis seemed to present a unique opportunity to pull together a massive overhaul of a complex industry. The rule-of-law agenda would have to wait, as the health bill soon overwhelmed many other initiatives, subordinating almost all other questions. White House staffers called it “triage,” the inescapable reality, as they saw it, of a president’s having to choose among policy priorities. They used the abbreviation AHC, or “after health care,” to refer to everything else they hoped to accomplish.
Obama was caught between his own pragmatic impulses and his commitment to “first principles.” The question of where and how to put Khalid Sheikh Mohammed—or KSM, as the spies and soldiers called him—on trial was symbolically important: Obama was determined to show that the American criminal justice system was a strength, not a weakness. Politically, this was a tough sell, since most Americans wanted the senior al-Qaeda operative kept far away and interrogated to the last drop of his useful intelligence. Obama’s advisers were sharply split. The January meeting had come against the backdrop of months of brutal infighting over counterterrorism policy. Obama had run a disciplined and drama-free campaign, and yet he had come to preside over a White House that seemed striking for its acrimony and dysfunction. No issue laid bare the divisions more than KSM. Sometimes the tensions played out openly, with profanity-laced outbursts in the halls of the West Wing. Other times they took the form of subterfuge, end runs, or a quiet knife in the back. The policy rivalries masked deeper, more personal animosities.
The two main protagonists in this drama were Rahm Emanuel, Obama’s intense and volatile chief of staff, and Holder, Obama’s friend. From the beginning Holder had struggled politically. He had been muzzled by Emanuel and the White House message police after some early gaffes, and he had fought increasingly lonely—and often unsuccessful—policy battles. Yet the president had his back. So did Valerie Jarrett, Obama’s senior adviser and a longtime friend of the president’s.
Obama’s affection for Holder bred resentment within the White House, especially with the chief of staff. “Of all of the twelve cabinet members, why does the boss like Eric the most? We should all throw him in a pit and kick him,” commented one of the president’s top advisers, sarcastically alluding to the biblical story told in Joseph and the Amazing Technicolor Dreamcoat, the 1970s Broadway musical about a father’s preference for one of his sons, and his brothers’ jealous plot to undermine him.
The disagreement on KSM played out against a larger internal war over domestic policy that Emanuel would memorably characterize as “Tammany Hall” versus “the Aspen Institute.” The Tammany faction, named for the infamous Democratic Party machine, was made up of the political operatives, the hardheaded realists. Opposing Tammany were the idealists and policy wonks who found a philosophical home at think tanks like the Aspen Institute, known for its lofty seminars dedicated to creating a more just society. In Emanuel’s conception, the Aspenites sailed naively against the political tide, fighting for unpopular causes long beyond their ability to prevail, often at the expense of the president’s standing. Tammany came to believe that many of the president’s promises to reform the war on terror were simply out of step with the American people. Its outlook was epitomized by one charter member’s cutting remark about the attorney general: “Your job is to take the shit off of the president, not to put the shit on him. KSM put the shit on the president.” The idealists, for their part, believed that Tammany’s eagerness to appease Republicans in Congress at the expense of core principles was self-fulfilling: the less the White House was willing to take on the right, the more it was rolled. The $64,000 question throughout these battles was always, “Where does Obama stand?” The president stayed so far above the fray, sometimes for excruciatingly long periods, that it was difficult to know which way he was leaning, much less where he would eventually settle.
National security policy has always been a presidential proving ground. American leaders, from Woodrow Wilson to Jimmy Carter to George W. Bush, have been defined by their crusades: to make the world safe for democracy, to put human rights at the center of foreign policy, to spread democracy around the world. They all faced pragmatic critics, and sometimes those critics were right. They also faced idealistic critics. For all of George W. Bush’s talk about spreading democracy, it was his assertion of executive power, from indefinite detentions to warrantless wiretapping, that drove liberals crazy. Now, with one of the world’s most famous terrorists coming to New York to stand trial—unless Obama reversed Holder’s decision—the Obama administration faced a focused, defining decision.
For Emanuel the decision to try KSM in civilian court in New York City was a self-inflicted wound, pure and simple. Sticking with it would be suicidal. It had only been a month since the “Christmas Day bomber,” Umar Farouk Abdulmutallab, a twenty-three-year old Nigerian al-Qaeda operative, had mocked American defenses and nearly brought down a packed airliner with explosives secreted in his underwear. Republicans were torching Obama as soft and ineffectual on terrorism. With an eye already on the midterm elections, the White House’s pollsters had begun noticing a worrying trend: independents were abandoning Obama in large numbers, and national security issues were part of the reason. When Scott Brown, an obscure Republican politician from deep-blue Massachusetts, captured Ted Kennedy’s Senate seat in a special election on January 19, it heralded the arrival of the Tea Party as an electoral force and struck fear deep into the White House political operation. In his acceptance speech, Brown returned to a theme that had resonated with voters throughout his insurgent campaign. “Our Constitution and laws exist to protect this nation,” he bellowed. “They do not grant rights and privileges to enemies in wartime.”
What Emanuel wanted to know now was whether Obama was really going to risk a second term to protect the constitutional rights of a bunch of terrorists held in Guantánamo. Was this the issue he wanted to stake his presidency on?
Obama could certainly be ruthlessly pragmatic, subordinating even cherished ideals to his political needs. But he struggled with national security dilemmas, sometimes to the point of Hamlet-like indecision, trying to balance security and liberty. Throughout the campaign he’d rejected the “false choice” between protecting the country and upholding its values. It wasn’t just a poll-tested talking point. He believed America’s strength was rooted in its ideals. After a year in office, Obama also knew that presidential decisions could create powerful precedents. His preoccupation with his legacy included an element of vanity—he’d sometimes tell advisers, “I don’t want my name” on a policy that might be judged harshly in the future. For all these reasons, he agreed with Holder that Khalid Sheikh Mohammed should be tried in civilian court, public opinion notwithstanding. So he had summoned his advisers to assess the damage of Mayor Bloomberg’s reversal, and to help him identify a politically feasible path forward.
Robert Bauer, the White House counsel, “set the table,” stating the agenda for the meeting. Obama nodded to Holder to lead off. Rather than a full-throated defense of his decision, however, the attorney general laid out the president’s meager options. Holder did not fill the room with a booming voice or sway it with the force of his legal reasoning. He didn’t have Bob Gates’s “command presence” or Hillary Clinton’s lawyerly precision. He was more phlegmatic and didn’t seem to crave the room’s approval. What he had was the president. Six months before, on the Fourth of July, they had stood together on the White House roof terrace, watching fireworks explode over the National Mall. “I’m leaning toward prosecuting KSM in federal court,” he had told Obama, careful not to cede his independence by seeking approval. “It’s your call, you’re the attorney general,” Obama had responded flatly.
Now, after Holder finished, Rahm let loose with a brutally concise message for the president: If you go ahead with this, you’ll lose and they’ll make you pay.
Seated to the left of Obama was Harold Hongju Koh, the former dean of Yale Law School, now serving as the State Department’s top lawyer. Round, perpetually rumpled, and possessing an enormous intellect, Koh was the administration’s resident left-wing bomb thrower. His writings in favor of “transnational jurisprudence” and a strong deference to international law made him a darling of the human rights community. The right had vilified him as an elitist whose theories would undermine American sovereignty. Even some of his colleagues in the Obama administration saw him as a moralizing academic. He was outranked by virtually everyone at the table—but Obama liked having him around in these settings. A former constitutional law professor himself, the president respected Koh’s academic pedigree and knew that he would push the intellectual boundaries of the debate. Koh understood and seemed to relish his role. For this meeting he had carefully prepared his remarks and rehearsed them before his staff.
Looking directly at the president, Koh pointed out that terrorists had been tried successfully in traditional American courts hundreds of times, and that there had never been any security problems. (Indeed, for all its tough talk, the Bush administration had routinely used the criminal courts to try terrorists.) Moreover, Koh argued, when our closest allies had suffered major al-Qaeda attacks, they tried the perpetrators in the cities where the strikes had occurred, whether it was London, Madrid, or Mumbai. To try KSM in Manhattan would “show confidence in our system,” it would be a “redemptive act,” precisely because it is what the terrorists don’t want us to do. Finally, Koh skillfully framed the debate as a showdown between Obama and the terror mastermind himself. “If KSM is tried in a military commission,” he told the president, “you will be playing completely into how KSM wants to be viewed—as a fearsome person and a great military leader, when in fact he is just a common criminal.”
Holder pulled out some highlighted, slightly worn papers from his leather binder and prepared to pass them down to Obama, but Koh beat him to the punch. Some of the president’s aides eyed each other nervously as they watched the unvetted papers reach the president, a breach of ministerial protocol. Back and forth the argument bounced, between liberal ideals and populist realpolitik. Obama did not say much; he mostly sat back and listened. When he did intervene, he seemed to vacillate between his own high principles and cold pragmatism. At one point he told the group that he wasn’t willing to lose his administration over the issue. But later in the conversation, Obama lifted the discussion out of the purely tactical. “We all know where terrorism is going,” he said. “Ten years from now an American teenager is going to be accused of trying to blow up the mall in Minneapolis.” He paused for effect. “I’m not going to be responsible for a separate system of justice for that kid.” Holder could not figure out where the president would finally come down on the matter. But he did notice that Obama kept glancing at the papers that had been passed to him.
Emanuel asked Phil Schiliro, the White House legislative liaison, how many votes the White House could expect to get if the KSM issue was brought before the House. Schiliro, an expert vote counter, didn’t even have to think about it: “Less than 200,” he replied—far fewer than the 217 votes the president would need to prevail. The ship had sailed, he seemed to be saying. But Holder pointed out that the administration had not properly prepared the ground with Congress or the public for the decision. Obama cut in, gently chiding his attorney general. “Now, Eric, to be fair, you didn’t do this right.”
The comment stung. “I wasn’t allowed to,” he said acidly. The two friends were now touching on something that had been a source of tension throughout the first year of the administration. There was an impression among many White House staff that Holder was politically inept and had botched the public presentation of difficult policy decisions. For their part, Holder and his aides believed that the White House was so spooked by its critics, it wasn’t willing to truly engage Congress and fight for what it believed in. Emanuel had made Holder announce the KSM decision late on a Friday, and then, rather than allowing the attorney general to defend it boldly on the Sunday-morning news programs and on the op-ed pages, he was told to appear only on the PBS NewsHour—an outlet with modest ratings.
Typically, when White House meetings descended into squabbling, the president would try to lead his team to higher ground. Now, Obama picked up the papers lying in front of him. They contained a sentencing statement delivered in 2003 by US District Judge William Young in a federal courtroom in Massachusetts, directed at Richard Reid, the so-called shoe bomber, who had attempted to blow up a civilian airliner in December 2001. Young gave Reid multiple life sentences without parole—along with a stirring speech, which Obama now began to recite.
This is the sentence that is provided for by our statutes. It is a fair and a just sentence. It is a righteous sentence. Let me explain this to you. We are not afraid of any of your terrorist co-conspirators, Mr. Reid. We are Americans. We have been through the fire before. There is all too much war talk here. And I say that to everyone with the utmost respect. Here in this court, where we deal with individuals as individuals, and care for individuals as individuals, as human beings we reach out for justice. You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too much stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt then down one by one and bring them to justice.
So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders. In a very real sense Trooper Santiago had it right when first you were taken off that plane and into custody and you wondered where the press and where the TV crews were and you said you’re no big deal. You’re no big deal. What your counsel, what your able counsel and what the equally able United States attorneys have grappled with and what I have as honestly as I know how tried to grappled with, is why you did something so horrific. What was it that led you here to this courtroom today? I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing. And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know.
It seems to me you hate the one thing that to us is most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not believe as we individually choose. Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are held here in this beautiful courtroom. So that everyone can see, can truly see that justice is administered fairly, individually, and discretely.
It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, will go on in . . . their representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties. Make no mistake, though. It is yet true that we will bear any burden, pay any price, to preserve our freedoms. Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, justice, not war, individual justice is in fact being done. The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.
See that flag, Mr. Reid? That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will. Custody, Mr. Officer. Stand him down.
Obama put down the speech and looked around the room. He didn’t fix his gaze on anyone in particular; he just stared for several moments. Then he spoke. “Why can’t I give that speech?” Without another word, he rose and walked out of the room.