Having placed their faith in the civilian justice system, the president and Eric Holder have gone about assuring us that the conviction of KSM and his associates is a done deal. Except it’s not, and they do that very justice system (which was never intended for enemy combatants) no favors when they promise a conviction. Others have noticed as well:
Ben Wittes, a senior fellow at the Brookings Institution, said that Holder’s confidence is misleading. “Holder is clearly talking nonsense when he says failure is not an option,” Wittes said. “Adverse outcomes can happen, and I am certain that within the Justice Department, they don’t consider it a zero possibility that this case will get totally out of control.”
Wittes goes on to argue that there are “risks in a military commission” system. Well, yes, but KSM was last seen pleading guilty, so it would seem the “risks” are a bit theoretical. As for the civilian trials, it’s about time Holder did away with the “following the law” meme. It’s nonsense. (“The 9/11 trials would make history, however, because the five detainees would become the first enemy combatants captured overseas and brought to the United States for a federal trial.”) Following the law would have meant employing the military commissions and following more than 200 years of American jurisprudence, both of which would have avoided the spectacle of an attorney general and a president spinning easily debunked tales.
And the president’s duck-and-run routine has gotten under the skin of even generally sympathetic pundits like Richard Cohen, who can spot political cowardice when he sees it, chastising Obama, who “let his attorney general, Eric Holder, announce the new policy for trying Khalid Sheik Mohammed and four other Sept. 11 defendants in criminal court, as if this were a mere departmental issue and not one of momentous policy.” Cohen can also figure out the logical gulf in the argument for trying some but not all terrorists in civilian court: “What is the principle in that: What works, works? Try putting that one on the Liberty Bell.”
It seems that no one is buying the rationale for this decision. Perhaps the president should get in front of the press or, better yet, meet with all the 9/11 families and explain it himself.