Beyond the merits of Attorney General Eric Holder's decision to try Khalid Shaikh Mohammed in federal criminal court in Manhattan is the fact that it was his decision. When I asked him about this last night at an event for the Brennan Center for Legal Justice, he candidly said, "that happens to be true. We informed the president while he was on Air Force One enroute to Asia."
Which is what the Founders expected but not the way Nixon and Bush 43 operated.
The 1789 Federal Judiciary Act created the position of Attorney General, who would be appointed by the president and be "a meet [fitting] person learned in the law." The idea was that he (at that time) would not be a crony or pure partisan but a person who would objectively advise on and enforce the laws. The next two centuries saw AGs in the political mold like Mitchell Palmer in the Twenties and Robert F. Kennedy in the early Sixties, as well as Edward Levi, Gerald Ford's Attorney General, a former president of the University of Chicago and its law school dean.
Then came John Mitchell, Richard Nixon's law partner and campaign counsel. It was under instructions from the Nixon White House that the antitrust case against ITT was dropped after the conglomerate made a $400,000 contribution to the 1972 Republican National Convention. (Tapes caught Nixon saying, "I want something clearly understood, and, if it's not understood, McLaren's ass [head of the Antirust Division] is to be out of there within one hour. The ITT thing -- stay the hell out of it. Is that clear? That's an order...I do not want McLaren to run around prosecuting people, raising hell about conglomerates.")
And, of course, Archibald Cox was fired as Watergate special prosecutor when he appeared to be doing his job too well.
Bush 43 adhered more to the Nixon than the Ford model. Attorneys General John Ashcroft and Alberto Gonzalez grossly politicized Justice by weakly settling a major tobacco case leading to resignations, by refusing to enforce the environmental and civil rights laws, by rejecting qualified lawyers to civil service jobs because they were Democrats (remember Monica Goodling's admission that they had "crossed the line" and broken the law), and by ordering the firing of U. S. Attorneys who wouldn't toe the White House line on suing people for "voter fraud."
The decision whether to try KSM in a civilian court or a military tribunal, with more secrecy and fewer due process protections, was not an easy one. When announced, the Anti-Terrorist Trio of Rudy Giuliani and Representatives Peter King and Peter Hoekstra predictably said that the sky was falling. Giuliani sarcastically noted that KSM wanted the trial in NYC and "since when are we in the business of granting the wishes of terrorists?" Of course, when the so-called 20th hijacker was previously tried and convicted in federal court, he had lauded that case and result; and since KSM has said that wants to be executed so he could martyr himself to his Islamic war on America, would Giuliani apply his own logic and agree that he shouldn't be "granted his wish" and therefore not be executed after a guilty verdict? (Of course, we should all be grateful that America's Mayor didn't charge a royalty because Holder had referred to "9/11".)
There were indeed difficult and competing arguments about the likelihood of convictions, added risks to New York City, the sentiments of victims' families, the use of evidence after waterboarding, and allowing KSM to exploit his case in open court to propagandize to the world. On the other side, there was the message to the world that America was bigger and better than any murdering terrorist and would adhere to the rule of law rather than a regime of torture and Gitmo.
But even though the choice of trial venue clearly had national and international political and security implications, The Decider ended up being precisely who it should be -- the Attorney General of the United States based on his judgment of law and evidence.
A prosecutor made the decision and took the heat. Unlike Nixon and Bush 43, the person upholding the "original intent" of our Founders -- the de-politicization of law enforcement -- was Eric Holder.