Addressing the Department of Justice's decision to try terrorist suspects in civilian court rather than a military tribunal, Sen. Jeff Sessions (R-Ala.), on Wednesday, called the move unprecedented and indefensible.
Only, it's happened before, and Sessions, the ranking Republican on the Judiciary Committee, once defended it.
Back in 2002, when the Bush Department of Justice put Zacarias Moussaoui, the so-called 20th 9/11 hijacker, on trial in a federal court in northern Virginia, the Alabama Republican was willing to grant presidential deference.
"[The White House] probably thought it might be good to try this one in public," Sessions said, according to a Lexis-Nexis transcript of a January 2, 2002, Gannett News Service article.
Sessions, who the news service described as backing Bush's decision, noted that the hearings would come with additional hurdles. "Jurors will have to be sequestered and taken back and forth to court in armed motorcades," he said. "Jurors will probably have to be provided protection after the verdict." He also made it clear that if the decision were left to him, he would have opted for the military tribunals. "I hope they thought this through and don't expose intelligence techniques," he said.
But he was far more lenient and forgiving of Bush than he has been towards the Obama administration for choosing the same judicial path. On Wednesday, the Alabama Republican told Fox News that Attorney General Eric Holder's current decision was "really not a defensible position."
"It represents a historic change in how we treat those who are at war with the United States," he said. "It is going to create a lot of complications once we are at trial."
Sessions isn't the only one whistling a harsher tune now than he did nearly eight years ago. Former New York City mayor Rudy Giuliani, who has been dispatched by the Republican Party this past week to savage the Obama White House for its decision, insisted that putting detainees like Khalid Sheikh Mohammed on trial would give "an unnecessary advantage... to the terrorists."
Interviewed after the Moussaoui trial, however, Giuliani insisted that the verdict (no death penalty but six consecutive life terms with no possibly of parole) said "something pretty remarkable" about the American people and legal system.
"I could tell that these jurors were very emotionally affected by this as I was when we went through all of the events," he said. "And yet they were able to come to what they regarded as a rational judgment. It has to say something about what America is like. And even though I am disappointed that they didn't reach the death penalty result, I would have preferred that, I have great respect for what they did here."
There were other Republicans, as well, who praised the Moussaoui case as exemplary of the United States government's commitment to open and fair judicial hearings. Former Senate Majority Leader Bill Frist (R-Tenn.) said that the verdict was "a small but important piece of justice" that provided "proof that our society is grounded in the liberating power of justice and the rule of law, which are our most valuable weapons in the war on terror."
Both Frist and Giuliani would likely insist that a military tribunal would have achieved the same results for Moussaoui with less of an accompanying circus atmosphere and fewer possibilities of intelligence being publicized or compromised. Also, the admission that Mohammed was waterboarded while in custody presents various complications for the current DOJ -- mainly, the possibility that he will turn the hearing into a referendum on the use of torture.
But Holder has insisted that he has enough evidence to get a guilty verdict from Mohammed without risking the revelation of embarrassing information from his detention. And, in this regard, his position reflects not a radical departure from tradition -- as Sessions suggests -- but a similar thread of legal thinking to one of his predecessors: former Attorney General John Ashcroft.