Attorney General Eric Holder testified today before a Senate committee about his decision to try professed 9/11 mastermind Khalid Sheikh Mohammed and four other jihadists in a federal court in New York City rather than through the military commission system. His words did not resolve any of the questions I raised about this move when he announced it last week. On the contrary, I’d say he made things worse.
MY QUESTION: Is the administration prepared to have KSM…acquitted because jurors are uncomfortable with some interrogation techniques used on him?
WHAT HOLDER SAID: “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.”
Sen. Herb Kohl, the Wisconsin Democrat, called this “an interesting point of view.” What he meant was: If we’re going to put these terrorists through civilian trials in order to prove something about America and our values to “the world,” should our top law-enforcement official be prejudging the outcome in this way? (President Obama, a lawyer and former constitutional law professor, made the same mistake today in an interview in China.)
MY QUESTION: If [KSM is] acquitted, will he be allowed after the court is adjourned to walk out into the streets in Manhattan like any other free man? If not, on what grounds would he be detained — and would these be legal?
WHAT HOLDER SAID (via The Weekly Standard): “Holder sought to soothe critics by explaining the administration has already determined that if something did go wrong, and a mistrial or acquittal happened, it would ‘not allow release into this country of anyone who was deemed dangerous.’ KSM and others would remain detained as enemy combatants, Holder said, in that case.”
Again, underneath the pretense of showing off American justice lies a premeditated willingness to bend the rules if necessary. All of this could be avoided through a military commission trial — a perfectly legal tool which Holder is using with the bombers of the USS Cole. (His line about having “the opportunity to present strongest evidence” in a civilian court versus a military one is also bogus on its face given the rules of evidence for each venue.)
Let’s just imagine the spectacle, not to mention the hit to America’s image, if KSM is somehow acquitted (again, this has to be considered a possibility when a trial is held) and then is detained on war-related charges (i.e. enemy combatant status). And all this after the administration made a big show of opting out of trying him in a military commission.
The plan seems to be: Try to win some PR points; if we end losing them later, we’re no worse off.
I disagree. The term “show trial” has gotten thrown around in connection with this story, and that’s a grave accusation to level at a government in a democracy. But it’s difficult to argue otherwise when the president and AG are telling the international public and the U.S. Congress, respectively, that the “defendant” will definitely be convicted and executed — and that, even if he isn’t, he won’t be a free man.
The administration isn’t bosltering democracy, justice and the rule of law in this case. It’s debasing them.