This column is really a second installment to yesterday's ("How To Not Give Khalid Sheikh Mohammed What He Wants"), where I took a look at two of the criticism's against Attorney General Eric Holder's decision to try the accused mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, in federal civilian court rather than in a military tribunal.
I ended yesterday's column with a summary of my two points (in case you don't feel like reading the whole thing):
The first is that the media must decide whether there will be a "media circus" at K.S. Mohammed's trial because they -- not him -- are the ones who have it in their power to either facilitate such or voluntarily ban it from the airwaves. And secondly, Attorney General Holder is not "playing into the hands" of K.S. Mohammed by denying him a military trial, he is instead refusing to give K.S. Mohammed what he wants -- a glorious warrior's death. Instead, he will be treated like any common criminal, because if the charges against him are proven in court, that is exactly what he is.
Today I'd like to tackle the biggest fallacy in the criticisms being voiced -- the biggest un-noticed elephant in the room in which this discussion is being held. As I said yesterday, I was truly surprised Holder's decision was even controversial. But then, these days, it seems just about everything is ginned up as a "controversy" by certain politicians, aided and abetted by a media which "just loves themselves a fight" -- any fight.
But in all this smoke and noise, something needs to be said. Because apparently a whole lot of people (who should really know better) have totally and utterly forgotten the way our system of justice is designed to operate.
An independent Department of Justice
A whopping amount of the criticism over Eric Holder's decision is being misdirected towards President Obama. This makes no sense whatsoever. It smacks of "Obama Derangement Syndrome," the symptoms of which seem to be staking out a position radically opposed to whatever Obama says, does, breathes, or broadcasts psychically to "tuned-in" brain wavelengths only Republicans can pick up.
Because President Obama, rightfully, had nothing to do with this decision. The Attorney General of the United States, Eric Holder, is the one who should be being attacked and excoriated by critics of his decision. But, strangely, I have heard no loud cries for Holder to step down, or for Holder to be fired, or for Holder to be impeached. Almost all the energy in denouncing Holder's decision mentions him briefly, and then quickly elides over him in order to focus on the White House and Barack Obama.
But, again, President Obama -- entirely correctly -- had nothing to do with this decision. Unless you take it back to Holder's appointment, which Obama did indeed make. You can say, quite validly: "Obama never should have appointed Eric Holder, he's a dangerous lunatic who is obviously unqualified to make a decision on whether to issue a parking ticket, much less matters of national security." On the derangement meter, this would barely register. A little over the top on Holder, but still within factual reality (as a critic of Holder's might see it). In contrast, however, the statement: "Holder has said he didn't even consult with the president before making his decision, which he should have, and Obama should then have told him not to do it and to try K.S. Mohammed in a military tribunal" sends the Derange-O-Meter over into the red.
Because, for those of you who only remember the Bush years, this is not how the law works. The Department of Justice, which as Attorney General, Eric Holder leads, is supposed to be independent from political influence, and independent from the White House. It is the only Cabinet position to be so independent, as far as I know.
The "checks and balances" to the office are the Senate's confirmation of the Attorney General, and the president's ability to fire him or her. That's it. This is necessary, because sometimes the Justice Department has to investigate other parts of the Executive Branch, up to and including the president. The president does indeed have the power to stop such investigations by firing the A.G. (see: Richard Nixon and the "Saturday Night Massacre"), but any president who fires an A.G. unjustifiably, or for self-serving reasons, pays a huge political price for doing so (see: resignation of Richard Nixon). A further layer of separation was created after Nixon, in the form of Special or Independent Prosecutors, who are named by the Attorney General, and then given the power to investigate the president (or anyone else, for that matter) -- but the Attorney General is the one who makes this initial decision, not the president (see: Bill Clinton, Janet Reno, Ken Starr).
That's because the decisions about what to investigate, whom to prosecute, and how to prosecute them are solely the responsibility of the Attorney General. That's what an independent Department of Justice is all about. It's hard to remember, but before George W. Bush took office, this is the way it operated and indeed is supposed to operate now. The aberration of Dubya's term (and the resulting complete politicization of the Justice Department under a parade of hapless Attorneys General) was just that -- an anomaly to the way the system is supposed to work.
So anyone who doesn't agree with Eric Holder's decision to try K.S. Mohammed in civilian federal court, feel free to criticize him for making such a decision. It's your right to disagree with such decisions. Feel free, even, to call for Holder's ouster. But don't try to drag President Obama into it, because he has no rightful place in the discussion.
Holder did talk to the groups that he thought had some valid input (i.e., non-political input) in the process of making his decision. He talked to the Pentagon and the Department of Defense (who are holding the prisoners currently in Guantanamo Bay), he talked to the mayor and police officials in New York City about the mechanics of holding such a trail and the security risks, and I'm sure Holder talked to quite a few other folks to get the details and information he needed to make an informed decision. But he did not talk to President Obama. Because he is not required to. A large part of the criticism currently being leveled is how Holder and Obama should have talked about how the decision would have played politically, either at home or in the rest of the world. But if the two had actually discussed this, it may well have been illegal for them to have done so. In other words, not only is Holder not required to have such a discussion, he is also not supposed to have such discussions in the first place.
So please, critics of Holder's decision, dig deep into your memory and try to remember the way the American system of justice worked before George W. Bush retooled it as an arm of the political agenda of the White House. Because the way it worked before Bush is actually how it is supposed to work, and that is exactly the way it did indeed work in Holder's decision-making process.
The C.I.A. doesn't get a vote, either
This one is so silly that I can dispense with it quickly. Many critics of Holder, in addition to "he should have gotten Obama's OK" are also -- stunningly -- saying "he should have gotten the C.I.A. to sign off on it as well."
Um, no.
The Central Intelligence Agency has many duties. Having a veto power over the Attorney General of the United States is not one of them. Nor should any sane individual argue that it should become one of their duties, because it is so far out of bounds of the mission of the C.I.A. that it isn't even visible on the horizon, as seen from Langley. I'm not knocking the C.I.A. here, just stating what should be obvious to people who really, really should know better -- we don't want the C.I.A. deciding who gets prosecuted and who does not in this country.
Neither do the victims
Some of these criticisms have been leveled from family members of victims of the 9/11 attacks. But, hard-hearted as it may sound, the victims don't get a vote in this either. This is the whole point of having a system of justice in the first place. Victims deciding punishment is not justice -- it is vengeance. An impartial judge and an impartial twelve citizens will decide this case. The victims may be heard during the trial or the sentencing, but they simply do not get a say in how the case is brought, or where. As I said, it's not easy for some to realize, but this also is a cornerstone of the foundation on which American justice is built.
The inevitability trap
But all of this is not to say, however, that defenders of Holder's decision have been completely blameless in this debate. Because they've fallen into a trap. To defend criticisms such as: "the defendants might actually get off on some technicality," or other versions of: "they could go free," Holder's defenders (up to and including President Obama) have painted themselves into a corner. And it's a tough corner to get out of. From an article today on this painted-in corner:
Obama said those offended by the legal privileges given to [K.S.] Mohammed by virtue of getting a civilian trial rather than a military tribunal won't find it "offensive at all when he's convicted and when the death penalty is applied to him."
Obama quickly added that he did not mean to suggest he was prejudging the outcome of [K.S.] Mohammed's trial. "I'm not going to be in that courtroom," he said. "That's the job of the prosecutors, the judge and the jury."
Holder, in the same article, 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."
On the one hand, Obama and other defenders of Holder's decision want to appear confident in the outcome. But on the other hand, they can't appear too confident, because that would broadcast to the world that what can be expected is a star chamber session -- where they might as well announce the guilty verdict before the trial even begins, and save everyone a lot of time and hassle.
This is a tough tightrope to walk. Ironically, in this situation, Holder is the one whose job it is to actually project such confidence in the trial's outcome. If this were a normal criminal case -- even a normal case that was highly political and had as high a profile -- it is the prosecuting attorney (the "D.A.," for instance) who is supposed to walk in front of the media's cameras and appear confident to the point of certainty that he or she is going to win the case and obtain a conviction. This is part of the psyching-out all attorneys (both prosecuting and defending) routinely perform in any high-profile case tried partly in front of the flashbulbs and the microphones. Holder's confidence is nothing more than par for the course, since one way to describe his job is as the head prosecuting attorney for the entire country.
But others defending Holder aren't on such solid grounds, which is why Obama was hedging his statements so much. If the President of the United States is saying he's 100 percent sure everyone will be found guilty, it smacks of the Old West and "hanging judges" and "hanging juries." If the outcome is so certain, then why go through the motions of a trail? Let's just take them all out back and hang them from their necks until dead.
This is kind of a specious argument from critics of Holder, as well. Because the course of action they are arguing for -- a military trial -- also requires the presumption of innocence and the possibility of an acquittal. Otherwise it wouldn't be seen as "justice" by anybody, even its defenders.
It's a hard thing to face, and perhaps an impossible one to admit in the face of political criticism, but every trial in all parts of the American justice system must have both the presumption of innocence and the possibility of acquittal. Otherwise it would not be justice, by any stretch of the imagination. As I said, this may be politically impossible for Holder's defenders to forcefully say right now, but it either is the truth, or this trial will be a star chamber session. You can't have it both ways.
Conclusion
The bare facts of the matter are that New York and the federal courts both have a near perfect record of conviction on the over 200 terrorism trials they've held. While this is in no way a guarantee of the outcome of the K.S. Mohammed trial, it certainly seems that the Department of Justice prosecutors, the judges, and the juries in New York are quite capable of rendering guilty verdicts in terrorism cases. Many of these cases involved "national security" issues, which were dealt with adequately without any wholesale release of national secrets to America's enemies. New York City says it is ready and willing to host the trial, and that they've got the security situation under control. Most people, when they first heard about the decision to hold the trial right next to the World Trade Center, thought it appropriate that the people who had seen the effects of the attack would be the ones sitting in judgment as jury.
To be honest, I still find the entire subject to be completely uncontroversial, and am amazed the debate even exists or has gone on this long. It's a relatively obvious choice for the Attorney General to have made. Nothing I've heard said against his decision has caused me to change my mind about it, either. The whole thing seems like nothing more than this week's stick which the Republicans have picked up in order to whack President Obama politically, in an effort to show him in the worst possible light at all times.
Here's a good test of the sincerity of the opposition (media talking heads, feel free to use this, with or without attribution): the next time someone is interviewed who says something like "but they could go FREE!" immediately ask them to wager on the outcome of the trial -- "I'll bet you $100 right here and now that they are all found guilty, if you'll bet that they'll be let off on some technicality." I bet very few of these critics would be willing to put their money where their mouths are. Because deep down, they know the criticisms they are bringing up are largely unfounded, and that they are instead merely interested in scoring some cheap political points.
Chris Weigant blogs at: ChrisWeigant.com
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It seems that critics of Holder's decision have no faith in our constitutional institutions.
Matthew Yglesias makes a great point that the criminal versus the war approach unravels the terrorists conceit. http://yglesias.thinkprogress.org/archives/2009/11/criminals-and-warriors.php
In contrast Bush wasn't concerned about justice or innocence, he wanted convictions. So he set-up a military tribunal system that not only allowed the prosecution to use coerced information and hearsay against the defendants, but that and any other evidence could be kept secret from the defense. Imagine being charged, convicted and sentenced on (possibly bogus) evidence, privy only to the prosecutor. Under those conditions a guilty verdict would be all but guaranteed.
If the goal is to simply get a conviction, then a military tribunal serves that purpose. Although our court system is imperfect it is just. So if the goal is to carry out justice, then put KSM on trial in a US court of law.
Get real....$75,000,000 for starters to protect NYC, What a waste of TAXPAYER'S MONEY!!!! They've confessed.....their guilty.....give them their just reward.
The way I heard it on the teevee news (can't vouch for it, personally) was if he isn't convicted, he goes straight back to being an "enemy combatant" and straight back to a jail cell until the "War on Terror" is over. In other words, right back to where he started from. Fears of us turning him loose anywhere in the world seem to be misguided, if that is indeed true (again, this is from the MSM, so I can't vouch for its accuracy, sorry).
-CW
You bring up an interesting point I didn't have time to address in either article. The fact that Holder has moved for a civilian trial indicates to me (unless he's totally incompetent as a prosecutor) that they will not rely on any post-waterboard evidence at all, and that they think they have an air-tight case without any of such evidence (which avoids the whole problem of tainted or coerced statements). From everything Holder's said so far, I truly believe they've got enough to go to trial on without having to fall back on such evidence. But it's just an impression on my part, I don't know if Holder has directly addressed the question.
-CW
responsible and this guy is it!
Isn’t “the way our system of justice is designed to operate”, merely a best attempt at overcoming the difficulties prevailing ? Have any improvements being incorporated as we evolved? Or are we still trying to do what is demonstrably impossible, using an inappropriate tool?
“If the outcome is so certain, then why go through the motions”
A mechanism exists that can accurately and dispassionate determine direction. But let us instead rely, on a moistened finger raised into the wind.
What strange and mysterious advantage is there in “proving” the innocent “guilty” and the guilty “innocent”? If the innocent are found "guilty", does that somehow satisfactorily satiate the senses, and in some way preserve "justice" ? Then what about the guilty, who effectively evade justice by being "proven" "innocent"?
I really don't know what you're hoping to achieve, or who you think you're kidding, but to contend that Holder, of all people, is "independent of political influence" is nothing short of comical. This is the same man who, as Deputy Attorney General under Bill Clinton, was instrumental in getting FALN prisoners released right when Hillary Clinton was courting Puerto Ricans during her run for the NY Senate.
This claptrap might fly with the Democratic party's first-time-voting "youths," but it's an insult to the intelligence of people who absolutely cringed to see Clinton's Asst. AG performing as a political OPERATIVE to help Hillary's campaign. To suggest that Holder even remotely resembles anything close to "politically independent" is as intellectually dishonest as it gets.
I hope you're not suggesting that Chris Weigant is in the same universe as 'intellectually dishonest' because nothing could be further from the truth. Nothing!
I may not know the difference between the judiciary and the executive branch and the office of the Attorney General of the United States but I do know that one should never imply that Chris has less than honourable motivations.
BTW, I'm back!
The Neo-Cons are, IMHO, exploiting implicit racism with respect to Holder, just as they've done with Obama. How (bigots are wont to reason) can a mere Black man be entrusted with important decisions? No matter that Holder is a product of Stuyvesant, Columbia and Columbia Law and a seasoned Federal prosecutor. In those circles and regions where GOP support persists, degrading cynicism wins votes. Nothing amazing there.
As to the Bill of Rights, no matter that the Sixth Amendment specifies, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed . . . " (Note that "all" and "accused", don't mean "some" and "accused, but only if a citizen". ) Having already, under Bush43, badly violated the speedy trial clause (and due process clause of the Fifth Amendment and cruel and unusual punishments provision of the Eighth), the GOP is scared pie-eyed that Bush/Cheney Constitutional violations will be spotlighted in a public trial. That would be bad publicity, costing them independents' votes, but that publicity might also enhance the chances of criminal prosecution of Bush43 officials and/or the underlying violations might allow the five accused felons to escape death (a miscarriage of justice, thanks to the GOP). Either of those last two possibilities could permanently destroy the GOP. Perhaps
All that remains is for the left to state that any criticism , that can in any way be shown as a criticism of Obama, whether a disagreement with his Cabinet, or with his Czars or with any of his appointments... is in fact proof positive of 'implicit racism'.
Also, IMHO, i do not believe that more that 2.5% of the posters here have any idea what the word 'neo-con' means... the word coined by the radical left, is thrown around as often as the racism charge...which when used, lessens the strength of the argument being made.
IMHO, your 2.5% figure is an imaginary number. The term "Neo-Con" applies only to that handful of dedicated, irrational idelogical buffoons who have so badly undermined the credibility of the GOP in the past decade. The term excludes all other Republicans (including those of the T.R., Eisenhower, and Rockefeller varieties who aren't at all enamored of misinformation, deliberate disinformation, and slurs and most of whom are perfectly rational, reasonable and sincere people who populate much of New England, for example). Being exacting in one's terminology strengthens one's arguments.
But thanks for the ostensible advice. I suppose it can't hurt to create political narratives from whole cloth and so, lay traps for the unwary. Hell, Bush43's team turned exactly that approach into eight consecutive years of political advantage for themselves, if a bloody disaster for the rest of humanity.
You are confusing the concept of an "independent judiciary" which we do have in this country and which is a part of the system of "checks and balances" - with an "independent" Department of Justice, which is something we have never had and never could have. The Department of Justice is not a part of the "judicial branch." The appointment of the Attorney General is as political as any other position in the Cabinet, and the DoJ reports to the President as part of the Executive Branch. In what way is that independent from the president?
It's not, of course. It's a POLITICAL appointment. Mr. Weigant, whom I'm sure is only trying to help Obama, should nevertheless cease and desist all "damage control" efforts. If Obama wants to distance himself from this horrific "decision," which has gone over like a lead balloon with the public, he needs to follow through with this very obvious and embarrassingly TRANSPARENT plan of cutting Holder lose if the American people don't go for the idea of granting war criminals constitutional "rights" that they're neither entitled to nor deserve.
Wait until the public hears the news that 100 terrorists are presently being prepped to be moved from Gitmo to the U.S. Is Obama even aware that the majority of Americans don't want Gitmo closed down???
While I disagree with your opinion, I applaud you for stating it clearly -- Obama should cut Holder loose. If you are annoyed with Holder's decision, this seems to me to be the correct solution to propose. I don't agree with it, but as I said in the article, I respect your opinion because it offers a solution, and not just misplaced criticism.
-CW
White House Counsel represent the President. The Attorney General represents the United States of America, NOT the President. Cabinet members are department heads answerable to the President, that does not automatically bestow either a Presidential right or ability to micromanage, but rather to hire and fire.
That the system is imperfect and rarely functions exactly as intended is an unfortunate and unavoidable consequence of its being administered by human beings -- not of some conspiracy, Democratic or Republican.
"Independent" is being the last living creature in existence and somehow continuing to survive; EVERY other state of being "independent" is less than perfect.
Unbelievable. I guess it was just a big coincidence that Holder made his announcement after Obama had left the country. I don't suspect Obama could possibly be seeking political cover in the event this big idea of his blows up in his face.
This is a lose/lose defense for Obama any way you slice, because if he WASN'T involved in this unprecedented action of granting war criminals full constitutional rights to a civilian trial, he sure as hell should've been.