The Obama / Holder Pervision of Justice

Instead of Death to KSM, we get Obama passing the buck to the slimy Eric Holder:

Excellent commentary, as usual by Charles Krauthammer:

On the decision to try Khalid Sheikh Mohammed in a New York civilian court:

What is so hard to understand is Holder's argument, the logic of his argument.

Now, I want to look only at a single aspect of it. … If [Holder] opposed the military commissions on principle, you could say his decision on Khalid Sheikh Mohammed was wrong, but at least it was logical.

But he doesn't. On the day he sent KSM to a civilian trial in New York, he announced he would send five of the miscreants who attacked the Cole, a warship, to a military trial in Guantanamo or perhaps elsewhere.

Now, what is the logic here? Holder was asked about this, and to the extent that he was coherent, which is only to a small extent, he said: Well, if you attack a civilian target, as in 9/11, then you go to a civilian court; a military target like the Cole, to a military [court].
First of all, the Pentagon was hit on 9/11, so it wasn't exclusively a civilian attack. But perhaps Holder forgot about that.

But secondly, even if [9/11] were exclusively an attack on civilians — which is a worse act of war criminality, attacking defenseless civilians or attacking a military target, like a warship? We have attacked warships in our history, Japan and Germany in the Second World War and elsewhere. That is an accepted act of war.

Why does a person [like] Khalid Sheikh Mohammed, who attacked civilians — the more obvious and egregious war crime — get the extra protections, the extra constitutional niceties that you get in a civilian courtroom, as opposed to someone who attacks a military target? The logic here is perverse.

And the incentive is [perverse]: If you are a terrorist overseas thinking — am I going to attack a well-protected military installation? [No,] I will hit a civilian [target]. I will be in a cozy cell with a lawyer, Miranda rights and perhaps even a blog. Why wouldn't I attack innocent civilians?

On whether, if by technicality or hung jury, one of these cases went the other way, they would be let free:

They will be rearrested in the courtroom. A second charge will be filed, and it will be endless. And in the end, if they are acquitted on all charges endlessly, they will end up in indefinite detention.

We will not let them out. Everyone knows that. That's what makes it such a farce.


Holder's 'Decision' [Jonah Goldberg]

My column on all this will be up tomorrow on NRO. But there's at least one point I make in it that I think isn't getting enough attention. It is ludicrous for the president to claim this was solely Holder's decision. First, I don't think it's true that Obama handed it off to Holder without any input on the matter.

But even if it were true, it's still Obama's decision. When the commander-in-chief gives law enforcement the final authority over what to do with enemy combatants, he can't then claim that he's not responsible for the decision. This isn't just a "buck stops here" point, though that's part of it. The moment he made this the Justice Department's call rather than the Defense Department's he made it clear where he comes down on the question. It's good politics to claim that he's just letting the rule of law and the justice system work through the issues, but that's all it is, politics. And, as president, it's if he thought Holder was wrong, he would have both the power and the responsibility to overrule him. He doesn't want to overrule Holder because the two of them see eye-to-eye on these questions.


Re: Holder's 'Decision' [Andy McCarthy]

On Jonah's point, I would just add that Obama has been playing this game from the first, and he gave the game away by overruling Holder when the blowback got bad over DOJ's effort to disclose classified photos of prisoner abuse. (See here and here.)

On that, note that Holder plays the same game — he (and Obama) claimed that they were simply complying with court orders. As I've explained a few times, Obama and Holder have the power under the Freedom of Information Act to order disclosure, but (a) they want disclosure and (b) such an order would make their base go nuts. So, Obama passes the buck to Holder, and Holder passes the buck to the courts — but it shouldn't obscure that the decision is Obama's. He's now playing out the string on the photos: he reversed Holder and had DOJ appeal the disclosure order to the Supreme Court; he's figuring the Supremes will uphold the disclosure order and then he can have DOJ publicize the photos under the fig-leaf that the Court has spoken. But it's a game — the justices are in this position only because Obama is trying to be unaccountable.

Secondly, as I recount in Willful Blindness (about to be released in paperback), the decision to indict Omar Abdel Rahman (the Blind Sheikh) was a controversial one, involving not only DOJ but State, the National Security Council, the Intelligence Community, etc. Attorney General Reno was forcefully in favor of indictment, others were either neutral or opposed but not strongly so. (Not indicting the Sheikh would have created a separate set of serious issues.) But it was not the AG's decision alone. Whenever a decision like this implicates the interests of multiple executive branch agencies, they are all consulted. But if there is strong disagreement, the president resolves the disagreement; and if it's a national security matter, the AG does not pull the trigger and indict if the president does not want that to happen — AG Reno would never have given us the green-light to go ahead unless President Clinton was on board.

In my mind, it is really foolish cowardice on President Obama's part to pretend AG Holder made this call alone. Obama owns the decision whether he owns up to it or not, so he might as well get out there and own it.


Justice Delayed [Marc Thiessen]

As usual, Andy McCarthy hits it out of the park with his column today on NRO, "Justice Delayed."I would add only one point: Part of the delay in trying KSM was in fact by choice, and it was a wise choice. Unlike the Obama administration, our first priority in the Bush administration was not putting KSM on trial — it was getting intelligence from KSM so we could stop follow-on attacks and save lives.

Remember what KSM said after his capture: He would tell us everything when he got to New York for his trial. We told him: You’re not going to New York. First, you’re going to spend a little time talking to the CIA. And under CIA questioning, KSM — together with other CIA detainees — gave us vital intelligence that helped stop a number of attacks, including a plot to fly an airplane into the Library Tower in Los Angeles; a plot to fly airplanes in the Heathrow Airport and buildings in downtown London; a plot to blow up our consulate in Karachi; a plot to blow up our Marine camp in Djibouti; and many others. His interrogation produced thousands of intelligence reports, and helped us wrap up the two main terrorist networks still at large at the time of his capture: the remaining members of the KSM network that had planned the 9/11 attacks, and the key members of the Hambali network that was working with al-Qaeda on follow-on attacks.

Once we had exhausted KSM as an intelligence source, President Bush transferred him and 13 other detainees from CIA custody to Guantanamo Bay so that they could face justice. If it had not been for the legal obstacles Andy cites, their trials would have begun soon thereafter.

And had it not been for the Obama administration, KSM and his partners would now be sitting on death row. KSM and his co-conspirators offered to plead guilty once their military commissions got underway and proceed straight to execution — until the Obama administration suspended the proceedings. This means that, with his decision to give KSM a civilian trial, Eric Holder effectively rejected KSM’s guilty plea, and told him, “No, Mr. Mohammed, first let us give you that stage you wanted in New York to rally jihadists to kill Americans and incite new attacks.”

That decision is what will lead to years of delay — and could lead to new terrorist attacks.

It is telling that Eric Holder considers the three years KSM spent being questioned by the CIA as a “years of delay.” To the contrary, the delay in KSM’s prosecution saved lives. If we had followed the Obama/Holder model, and sent KSM to New York to see his lawyer, there would likely be craters in the ground in Los Angeles, London, and where our consulate in Karachi and our Marine camp in Dijbouti once stood.

— Marc Thiessen’s new book, Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack, will be published by Regnery in January 2010.


Mukasey: Obama Administration's 'soft, cushy euphemisms reflect they're back in a pre-9/11 mentality' [Andy McCarthy]

The Washington Times reports that Former Attorney General Michael Mukasey elaborated today on his warnings about the dangers of transferring the 9/11 jihadists to New York City for a trial in the civilian justice system.

"It's simply a fact of life that a jihadist, particularly somebody like Khalid Sheikh Mohammed, is looking for a big stage," Mukasey said in an interview on the WTimes's "America's Morning News" radio show. "New York City is the biggest stage in the world, and the attempt will be made to make this as big, spectacular and ugly as possible."

He reminded listeners that Zacarias Moussaoui had turned his civilian trial into a circus (Remember this ditty: "America, you lost . . . I won," and "God save Osama bin Laden. You will never get him.")

Joe Weber's report continues:

Mr. Mukasey also supported the criticism that the Obama administration's plan for the trials — as announced Friday by Attorney General Eric Holder — reflects a "pre-9-11" mentality, or worse. He cited Mr. Obama's decision to bring suspected terrorists from the Guantanamo Bay detention center to trial on U.S. soil and his refusal to use the term "war of terror."

"Using soft, cushy euphemisms instead reflect they're back in a pre-9-11 mentality," he said. "In some ways it's worse, because at least before [the attacks] we were not aware of what we were facing."

Mr. Mukasey also said the mass shooting at the Fort Hood Army base in which 13 people were killed was a terrorist act. Witnesses said suspected shooter Maj. Nidal Malik Hasan yelled "Allahu Akbar" before shooting. "It's impossible to categorize it as any other act," Mr. Mukasey said.

He said Maj. Hasan represents the new breed of "leaderless jihadists," encouraged by Osama bin Laden and other terrorist leaders. "This man is a fulfillment of their dreams," he said.