There are a few jobs in Washington where a losing record will get you a pink slip, ushered to the door with your belongings in a cardboard box, and unceremoniously booted to the curb. It's nothing personal, it's just business; a successful franchise only tolerates a loser for so long. Just ask Jim Zorn. As head coach of the Washington Redskins, Zorn led the team to a 4-12 record in 2009. Winning one out of every four times your team takes the field is failure however you measure it and despite whatever excuses you muster to explain bad results. By all accounts Jim Zorn was a good guy and most fans and players liked him, but when you're calling the shots for a team that loses a lot more often than it wins ... well, the buck stops somewhere, and it's often at the head coach level. The team owner bears ultimate responsibility for the success or failure of his or her team, and Redskins' owner Dan Snyder decided enough was enough, fired Zorn, and hired Mike Shanahan to lead the Redskins next season.
President Obama occupies a role similar to Snyder's in some respects. He bears ultimate responsibility for the success or failure of the franchise he oversees, the Executive Branch of the federal government, which to all except the most fanatical Redskins fans is the most important franchise in Washington. Attorney General Eric Holder calls the shots for the team he leads at the Department of Justice, similar to the way a head coach like Jim Zorn or Mike Shanahan calls the shots for the Redskins. When Holder's players suit up and trek three blocks down Constitution Avenue to take the field, so to speak, in the courtrooms in the Prettyman Federal Courthouse to face off against the attorneys representing detainees at Guantanamo Bay who are challenging the basis for their detention Holder's lawyers win about as often as Zorn's Redskins. In 48 detainee cases decided so far, the Justice Department has won 13 and lost 35, a success rate on par with the Redskins' 4-12 record last season. Redskins' fans yelled for Snyder's scalp and ultimately Zorn got the ax, but there's no great uproar over Obama's and Holder's losing ways?
Sports fans prefer a blowout, but a one point victory goes in the same column as a lopsided shutout; a win is a win. In habeas cases in Federal District Court, the government only has to clear a preponderance of evidence standard to secure a win. In other words, the government only has to tip the evidentiary scale by a fraction of a point and the detainee loses and the government wins. When you're talking about detainees that in some cases have been confined for more than eight years and that the government assured us were the "worst of the worst" terrorists on the planet you'd think the government would prevail every time or, worst case, nearly every time. Instead, the government is twice as likely to win a coin toss as a detainee habeas case. After a persistent losing trend in sports at some points fans turn to the team owner and the head coach and ask "what are you doing to turn things around and if they don't turn around whose head is going to roll?"
I suppose the government being right a quarter of the time about detainees shouldn't come as great surprise. In 2002, Attorney General John Ashcroft, speaking on national television, said Dr. Steven Hatfield was a "person of interest" in the 2001 anthrax attacks, an accusation that shattered Dr. Hatfield's life. In 2008 the government paid Dr. Hatfield $5 million for the damage he suffered when the government's belief proved wrong. In 2003, President Bush sent the U.S. military into Iraq when the government assured us it was a "slam dunk" that Saddam had a weapons of mass destruction program that had to be eliminated for our own safety. Seven years later, we're still there and there's no WMD to be found. The "slam dunk" evidence proved to be a sham. That's not to say the government is never right - it is - in sorting the good guys from the bad guys, but history shows apparent certainty in some cases leads to calamity later.
Now, the U.S. government is said to be engaged in a targeted assassination program where American citizens believed to be involved in terrorist activities outside the United States can, with approval at the highest levels of government, be tracked down and executed without trial. Recent news reports say President Obama has authorized the CIA to kill radical cleric Anwar al-Awlaki, an American citizen believed to be in Yemen, because of strong evidence of his ties to terrorism, including the Fort Hood massacre. Odds are the suspicions about al-Awlaki are right and his demise would make us safer, but a program that sanctions the execution of American citizens without a trial where guilt is established beyond a reasonable doubt is the ultimate "death panel," a term used in a fictional sense during the health care reform debate that could literally be true with this CIA program.
When the government is wrong about a detainee he can, at least in theory, be sent home to get on with his life. When the government is wrong about someone like Dr. Hatfield he can be made whole, to an extent, by writing him a big fat check. When the government was wrong about Saddam and WMD the guy who ended up swinging at the end of the rope was, at least, not one of our fellow citizens (as if that's a bright spot on this whole misadventure). When the government decides an American citizen has to be eliminated without trial all ordinary people can do is cross their fingers and hope the government is right more often than history shows it has been before. If the government is wrong - and if the past is prologue it's inevitable that it will be - then the term isn't "assassination," it's "murder," and no amount of money will bring back the dead and no excuse will wash the blood off the hands of the President.