Thursday, November 19, 2009

The incoherence of Eric Hoder

Attorney General Eric Holder testified yesterday before the Senate Judiciary Committee and tried to answer criticisms of his decision to try Khalid Sheik Mohammed in New York rather than before a military commission. He gave a long statement about what a tough call this was and how he was very thoughtful in making it. Powerline has the entire statement. Read it through. You won't find any explanation of why New York City's civilian court is preferable to the military commissions that he approved for terrorists who attacked the Cole. His statement is just a bunch of defensive blather, but never addresses the key question.

Andrew McCarthy, who prosecuted the blind sheik and has come to recognize the severe drawbacks from using the civilian system to try terrorists, puts up eight criticisms of Holder's statement. Here are some of the points he makes. See if you find his explanation more coherent than Holder's blather (which is in bold).
5. A civilian trial is no more a platform for KSM than a military commission would have been. That's ridiculous. KSM was ready to plead guilty and be executed eleven months ago. Whatever soapbox he was going to have, he'd largely already had, and while we'd have had to let him speak before sentence was imposed, that would have been the end of it. Now, he's going to get a full-blown trial — after combing through the discovery for a couple of years and after putting the Bush administration under the spotlight.

Holder derided Senator Kyl for pointing this out, saying Kyl had no way of knowing what KSM's position is today. That's a specious point. We do know what his position was eleven months ago when the Obama administration could have accepted his plea and pushed for his execution. Moreover, why would that still be KSM's position today, when he now knows Holder is ready to give him the stage in New York that he's been seeking since the day he was captured?

6. In a civilian trial, America will see KSM for the coward that he is — Holder: "I am not scared of KSM." Submitting a war criminal to a military commission is not an exercise in fear; it is an exercise in justice. We already know all about what kind of animal KSM is, thanks to the exrtraordinary information that has come out in the military proceedings and the CIA interrogations. You could fill a book a book with it, which the 9/11 Commission did. We don't need to bear the risks of a civilian trial either to learn more about KSM or so Mr. Holder can show how brave he is.

7. Holder expects to detain the terrorists in federal prisons under Special Administrative Measures (SAMs) to ensure that they do not pose a risk to Americans. In addition to not mentioning Salim (see no. 2, above), the attorney general skipped over the inconvenient fact that his Justice Department just caved in on the SAMs in the case of terrorist Richard Reid.

8. For eight years justice has been delayed — no longer, "It is past time to finally act." Holder, of course, does not mention the role of his firm and others in delaying and derailing the military commissions during their representation of America's enemies. Senator Kyl just confronted him with my contentions on that score (from this column). The attorney-general responded that I am a polemicist who says inflammatory things for talk shows, whereas he is concerned with facts. (I guess he means pertinent facts, like how he is not "scared of KSM.") I'm delighted to let people judge that one for themselves.
I think that that is pretty clear. Holder has no answer to why they just didn't accept KSM's guilty plea and so instead we're going to have this nightmare of a trial. He can't say why he chose some terrorists to be tried in mmilitary court and some in civilian court. Is the criteria nothing more than that those who attack military targets rate military trials and those who attack civilians get civilian trials? What was the Pentagon? And why is that a coherent choice? Wouldn't it give terrorists an incentive to attack civilians rather than armed forces?

And then the final incoherence is when both Holder and President Obama tell us that KSM will be convicted and sentenced to death. Holder tells us that "failure is not an option." Geesh! If the whole point about this public, civilian trial is to convince the rest of the world that we will deal justly with our enemies, doesn't prejudging the result and promising the death penalty rather interfere with that goal? It makes this seem nothing more than a show trial.

Holder can't defend his decision. He can't answer whether his decision now means that those captured on the battlefield should be given their Miranda rights. Conservatives might get peeved at times with Lindsay Graham, but on this issue, he's terrific and his interrogation of Holder is worth reading. If they're going to be tried in federal civilian court, they have rights that are guaranteed to them and we have now criminalized the war. Here is Graham.
Graham: "If we captured Bin Laden tomorrow would he be entitled to Miranda warnings at the moment of capture?"
Holder: "Again, I'm not...that all depends..."
Graham: "It does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs, the criminal defendant is entitled to a lawyer and to be informed of their right to remain silent....if we caught Bin Laden tomorrow we could not turn him over to the CIA or the FBI or Military Intelligence for interrogation on the battlefield because now we're saying that he is subject to criminal court in the United States and you're confusing the people fighting this war. What would you tell the military commander who captured him? Would you tell him you must read him his rights and give him a lawyer, and if you didn't tell him that would you jeopardize the prosecution in a federal court?"
As Allahpundit points out, Holder doesn't have a coherent plan for how to treat terrorists.
He refers here to the DOJ’s “protocol” for deciding which terrorists get civilian trials and which get military tribunals. Did he happen to mention at any point today what that protocol might be, precisely? Graham seems to think it’s “civilian trials for terrorists who kill civilians, military trials for terrorists who kill soldiers,” which would, of course, be utterly perverse. There’s another possibility, though, and one which jibes with Holder’s dopey fixation on not needing a confession to convict Bin Laden. Maybe they’re simply looking at the pile of admissible evidence they have for each detainee and deciding that guys with big piles go to civilian court, where they’re likely to be convicted anyway and The One can crow about “due process,” while guys with smaller piles go to military court, since a civilian trial might well result in them getting off. If that’s what they’re doing — i.e. a two-track justice system designed purely to maximize the government’s odds at conviction while minimizing the political risk of acquittal — then, like Patterico says, KSM’s trial is even more of a show trial than we thought. Presumably, if Holder thought we did need confessions to convict him and/or Bin Laden, the plan to try them in Manhattan would be scuttled and they’d be off to a tribunal to make things easier on the prosecution. The decision on what “due process” is due, in other words, is based not on the nature of the underlying act — war perpetrated by a foreign enemy — but on the outcome The One wants to achieve, with Holder actually going so far today as to say, I kid you not, “Failure is not an option.” Isn’t failure always an option in a true due-process regime?
Both Holder and Obama have promised that they're not going to release terrorists who would be a danger to the American people. So the trial is a show trial with a guaranteed outcome. So why is this supposedly more moral than a military commission? The decision is totally incoherent and Holder can't answer legitimate and troubling questions about the implications of his choice. All he can do is tell us how thoughtful he was about making it. That isn't what we care about. We care about the quality of the decision. And the quality stinks.