Friday, November 19, 2010

Eric Holder's failures are Barack Obama's failures

The news that a terrorist involved in the bombings of the African embassies got off on all but one count left people wondering how this could have happened. Well, it didn't happen as an accident. As the WSJ explains, it was a result of first the choice to try him in civil court as a model for future enemy combatant trials. And then by choices that the Holder Justice Department made in how they conducted the case.
The follies began early when Judge Lewis Kaplan ruled that prosecutors could not call a key witness, Hussein Abebe. Mr. Abebe was to testify that he sold Ghailani the TNT that blew up the embassy in Dar es Salaam, killing 11. Authorities learned of Mr. Abebe from Ghailani, who named him during his CIA interrogation, and defense lawyers claimed the interrogation was abusive.

"The government has elected not to litigate the details of Ghailani's treatment while in CIA custody," Judge Kaplan noted in his ruling. "It has sought to make this unnecessary by asking the Court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced." Since the government had not demonstrated that Mr. Abebe's testimony was "sufficiently remote or attenuated" from the alleged coercion of Ghailani, Judge Kaplan held the testimony inadmissible. Prosecutors elected not to appeal and also chose not to use Ghailani's confession, which he later repudiated.

Mr. Holder's response was dismissive. "We are talking about one ruling, in one case by one judge," he told reporters. "I think it's too early to say that at this point the Ghailani matter is not going to be successful."
Well, we know what happened now. And it was a disaster for America.

The original mistake was to try Ghailani before a civil court instead of the perfectly adequate military commissions that the Congress had designed.
The blunder was Mr. Holder's decision to dump Ghailani into the civilian system when a perfectly adequate military tribunal was available. Despite interminable legal challenges from white-shoe law firms and the political left, the Supreme Court has ruled that military commissions are lawful and part of a long U.S. tradition from revolutionary days through FDR. Their advantage is that military tribunals have somewhat more liberal rules of evidence and are designed to handle classified material in a way that protects national security without disqualifying pertinent facts.

Mr. Holder's choice was wholly political, intended to appease the anti-antiterror left that helped to elect President Obama.
Ghailani was convicted on one count, but it's also clear that the United States isn't going to let him go.
The jurors did do Mr. Holder the favor of convicting Ghailani on the one charge. Had they acquitted him on all counts, Mr. Holder would have been left with the choice of letting a terrorist go free to kill Americans again, or ignoring the verdict and holding him indefinitely in Guantanamo as an enemy combatant. As Judge Kaplan noted during the trial, Ghailani's "status as an 'enemy combatant' probably would permit his detention as something akin to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty in this case."

Savor that irony. Trying terrorists in civilian courts is supposed to showcase American justice, but even if they're acquitted they'll be held indefinitely. Meanwhile, terrorists already know that if they're captured they'll get less vigorous interrogation than your average U.S. street criminal, and that they can play their civilian trial for propaganda purposes. Mr. Holder and his boss, the President, have in their ideological willfulness managed to hurt both the reputation of U.S. civilian justice and national security.
Michael Gerson doesn't cut corners in describing the botch that Eric Holder has made of our policies on detainees in the war on terror.
Attorney General Eric Holder not only defended a New York trial for lead Sept. 11 plotter Khalid Sheik Mohammed, he lectured, he taunted, he preened. Unlike others, he was not "scared" of what Mohammed would say at trial. Failure was "not an option." This case, he told a reporter, would be "the defining event of my time as attorney general."

Which it certainly has been. Under Holder's influence, American detainee policy is a botched, hypocritical, politicized mess.
The latest failure has been the acquittal of Ahmed Ghailani on all but one count.
The case of embassy bomber Ahmed Ghailani - the only Guantanamo Bay detainee the Obama administration has brought to trial in the United States - was intended to increase public faith in civilian prosecutions. But a terrorist hugging his lawyers in victory can't be considered a confidence builder. Days before the Ghailani verdict, the White House admitted that Mohammed, because of massive, public resistance, would not be seeing the inside of a Manhattan courtroom anytime soon. "Gitmo," one official told The Washington Post, "is going to remain open for the foreseeable future."

Where do these developments leave Holder, for whom failure is not only an option but a habit? A recent profile by Wil Hylton in GQ magazine attempts to put his tenure in the best possible light - the lonely, naive man of principle undone by politics. But the portrait is unintentionally devastating. Holder clearly views the war on terrorism as a distraction. "The biggest surprise I've had in this job," he told Hylton, "is how much time the national security issues take."
If that is his biggest surprise, he was clearly not ready for the job. Perhaps from his experience in the Clinton administration, Holder just wasn't used to fighting terrorists. But he should have known that things change. He and his boss, President Obama, just didn't understand the terrorism threat. They enjoyed preening about their moral superiority to the Bush policies as if those policies were developed simply to stretch the Constitution. Reality has been rough in slapping them in the face with what happens when you attempt to try foreign combatants in the civil court system. And now they're left with this egg on their faces.
He was oblivious to predictable reactions in the Mohammed case. "The political furor that erupted next," says the article, "took Holder completely by surprise." The attorney general has been stripped of authority over the trial venue by the White House. And Holder's unshakable legal principles, it turns out, were more like poses.

"In case after case, he seems to have reconciled himself to policies that he would have once condemned," concludes Hylton, a true progressive believer. "As we went back and forth, I began to realize that it was impossible to know how much of Holder's argument he really believed, and how much he was merely willing to say."

Holder clearly believes that his virtue was violated by politics. But there is a better explanation. President Obama's undeniable continuity in conducting the war on terrorism - the use of indefinite detention, Guantanamo Bay and targeted killing of terrorists - reflects the continuity of the threat. These measures did not result from some anti-constitutional ideology. They were difficult, conflicted but reasonable responses to an ongoing terrorist offensive - a war that is more than a metaphor.

Civilian courts were not designed for high-profile enemy combatants such as Mohammed, who would use a New York trial to embrace martyrdom and encourage violence. The use of military tribunals at Guantanamo Bay is fully constitutional, approved by Congress and consistent with wartime precedent.

Obama seems to be realizing - gradually, reluctantly - that applying the rules of war in the midst of a war does not destroy the credibility of the rule of law or encourage terrorist recruitment. But his public inability to admit this shift seems to be leading to the worst of possible outcomes.

In all likelihood, Mohammed won't be tried in a civilian court. But Obama's progressive allies would revolt against a military tribunal for the killer of Wall Street Journal correspondent Daniel Pearl and the mastermind of Sept. 11. So Mohammed is left in legal limbo. This, in its own way, does seem at odds with the rule of law - a prisoner condemned to detention without trial because a president cannot admit he was wrong.

How does Obama back down and accept a tribunal? He could begin by appointing an attorney general who understands the requirements of national security. Some on the left believe Holder should resign out of principle. Some on the right believe he should leave because he is out of his depth. Such bipartisanship should not go to waste.
Ed Morrissey says that it is time for Holder to go.
Such is the state in which Holder as Attorney General has left the US. Either the US is so inept that it will eventually release a man who attacked two of its embassies abroad (which was an act of war by al-Qaeda) or that the DoJ may commit an impeachable act by knowingly submitting a defendant to double jeopardy, whether in this administration or a future administration. By committing to the civilian criminal system and assigning judicial jurisdiction where it never belonged, those are the only options left.
Holder has made mistake after mistake in the war on terror and that is just not acceptable.

But these are not Holder's mistakes. These are Obama's mistakes. Do you think Holder would be making these decisions on how to treat enemy combatants without Obama's approval? Would a replacement for Holder have any different approach? Not while Obama is president. This is what Obama campaigned on. Obama enjoyed contrasting his supposedly superior moral position contrasted with President Bush's. Eric Holder's failures are Barack Obama's failures. Getting rid of the former won't make a difference.