In May, Obama Said He’d Use Military Commissions to Try Terrorists ‘Who Violate the Laws of War’ and to Protect Intelligence Sources and Trial Participants

By Terence P. Jeffrey | November 18, 2009 | 4:12 PM EST

President Barack Obama and China's President Hu Jintao review the honor guard at the Great Hall of the People in Beijing, Nov. 17, 2009. (AP Photo/Charles Dharapak)

( - In a speech delivered six months before his administration decided to try 9/11 mastermind Khalid Sheik Mohammed in a federal civilian court, President Barack Obama said he would use military commissions to try terrorists who “violate the laws of war” and to protect intelligence sources and methods as well as the safety of the people who would need to participate in such trials.

In the speech, Obama said: “We are indeed at war with al Qaeda and its affiliates.”

Additionally, he warned in the May 21 speech that “al Qaeda is actively planning to attack us again” and that after 9/11 the nation had entered an era in which we faced “enemies who did not abide by any law of war.”
Obama gave the speech at the National Archives--with the Constitution and the Declaration of Independence in display cases behind him--to explain his approach to closing the prison at Guantanamo Bay, Cuba, and to spell out his intended methods for bringing terrorists to justice.

Obama said his plan was to “try those who have violated American criminal laws in federal courts” whenever it was feasible to do so, but that he also intended to try those “who violate the laws of war” in military commissions.
In making his case for using military commissions, Obama said that when properly constituted these commissions were a legitimate venue for trying terrorists who have violated the laws of war and argued that the commissions were needed in such cases to protect intelligence sources and methods, to secure the safety of people participating in the trials, and to provide a venue in which evidence gathered on a battlefield could be presented.

“The second category of cases involves detainees who violate the laws of war and are therefore best tried through military commissions,” said Obama. “Military commissions have a history in the United States dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war.  They allow for the protection of sensitive sources and methods of intelligence-gathering; they allow for the safety and security of participants; and for the presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.”
Last Friday, Attorney General Eric Holder announced that the administration would use a military commission to try Abd al-Rahim al-Nashiri, the alleged al Qaeda mastermind of the Oct. 12, 2000 attack on the U.S.S. Cole that killed 17 U.S. sailors. At the same time, Holder announced that the administration would try Khalid Sheik Mohammed, the alleged mastermind of the Sept. 11, 2001 attacks that killed almost 3,000 people at the World Trade Towers, the Pentagon and in Shanksville, Pa., in a federal civilian court.  The attack on the Pentagon killed 55 U.S. military personnel and 70 civilian Defense Department employees.
To apply Obama’s stated criteria for the use of military commissions to the case of Khalid Sheikh Mohammed and decide that Mohammed should be tried in a federal civilian court instead of in a military commission, the administration presumable would have needed to determine that in sending covert agents to hijack commercial jets and fly them into the Pentagon and World Trade Towers, Mohammed had not 1) violated “the laws of war” (like Nashiri apparently did in the administration’s view) and that there would be no need at his trial 2) “for the protection of sensitive sources and methods of intelligence-gathering,” 2) to “allow for the safety and security of participants,” and 3) to allow for the “presentation of evidence gathered from the battlefield that cannot always be effectively presented in federal courts.”