Trying Our Patience

CNN featured a guest editorial today from a JAG college professor who advocated for the trying of terrorists in criminal courts by starting his piece with the following premise:

Suppose that shortly after 9/11, when it became clear that Osama bin Laden and other members of al Qaeda were responsible for the attacks, President Bush had made the following announcement:

"Those responsible for these attacks are cowardly, vicious murderers, and we will pursue them to the ends of the earth to capture them. They are not warriors, they are criminals, and they will be treated accordingly. And once we catch them, we will bring them back to the United States and put them on trial right there in lower Manhattan so that a jury of 12 fair-minded New Yorkers can decide their fate."

Such an announcement would not have been controversial in the slightest and undoubtedly would have been met with widespread approval. After all, putting terrorists on trial in federal court is how we always dealt with terrorists, including the first group of murderers who tried to blow up the World Trade Center.

Emphasis added to point out that yes the hell it would have been controversial! Americans--especially those in New York and Washington--wanted shock and awe, not the deployment of a squad of G-men in black suits. So right off the bat his entire piece was flawed. He's not the only military person in favor of trying terrorists in courts rather than commissions (wonder what he thinks about battlefield justice using CIA predators? ), which is also still a goal for the administration.

And indeed, Obama may get his way. He'll probably get health care and with it the ensuing standing ovation from the media for an 'historic accomplishment', which he'll then parlay into a color commentator appearance during March Madness basketball and perhaps a the return of KSM to federal court.

The latter was the focus of questions for Eric Holder in Congress on Tuesday where he indicated that once again, they are weeks away from another "decision" on the matter. Isn't this a form of torture itself?

Keep America Safe has some excerpts from the testimony, focusing on the one where he compared the rights of bin Laden to those of Charles Manson. Allahpundit showed how it wouldn't matter because Holder thinks we're never gonna take him alive anyway. Click through to view (it's very long).


Holder stuck with the non-answer on bin Laden even under follow-up, which was key. The man hasn't changed his stance on terrorism since he worked in the Reno Justice Dept., that it's a criminal matter, not a military matter. Well check that, he did see the wisdom in not giving them Geneva rights after 9/11. But that was then! This is now, a more tranquil period where the Attorney General can sit in front of Congress and advocate for the same failed policies of the 90s and get away with it.

For instance, further testimony revealed that Holder didn't know where the HIG group was to be based in the DC area. Not surprising, since Obama created the HIG and the other blue ribbon panels to deflect his closing of Gitmo and the EIT program, not to actually do anything productive. The media played along by never asking questions until Abdulmuttalob threw a monkey wrench in the works, and even after that, very little has been asked. Nobody wants to think about it. The administration knows this--they don't either when there are domestic legacies to be forged.

Rep Culberson made a decent point on the possible leaking of material in the Ghailani trial in New York (hey we can always trust the lawyers!) but then made a fool of himself by saying there was no precedent for trying foreign nationals in court. Holder smilingly threw out Aafia Siddiqui--a foreign national brought to federal court in Manhattan by Bush and recently convicted. Apparently he and his staff have no memory of Ramzi Yousef or the Blind Sheikh, either (had he known about Siddiqui he could have pointed out that she was convicted of attempted murder of the officers, not terrorism). So it's true, liberals are smarter even when pursuing stupider policies, and Holder handed him his rear.

But it didn't have to be that way. Holder's main argument for using federal courts is the availability of making deals, something not possible in military commissions. This is designed to take the place of enhanced interrogation (except when Obama renders someone to Egypt, something else not mentioned). His example--dangle the specter of spending a life in the Supermax in return for information. Few challenged him on this but sure, low level ordnance like Abdulmuttalob may take a deal but they don't know much. The big fish are a different matter.

Before 9/11 Bush was widely quoted as telling Condi Rice that he was tired of 'swatting at flies' in pursuit of terrorists and preferred a bolder course of action, which we eventually saw. That's because the policies of the Reno Justice Dept had done nothing to stop the rise of bin Laden because they were reactionary and not designed to cull information. This is now lost on people as the waters calm.

Which is why he punted the question about capturing bin Laden. He knows the hard cores will never willingly give up sensitive information without being tortured. The reason Bush used waterboarding was not because he was an evil Republican, no more than Clinton was evil for starting the rendition program in the 90s to whisk terrorists to countries that used "enhanced" interrogation. It was because there was no other way to get time-sensitive information with WMDs possibly in the mix.

And Holder is not dumb enough to think the big fish can be given deals. It's both practically and politically out of the question (imagine cutting a deal with Osama) yet for some reason his GOP interlocutors didn't hammer this point, which is the crux of the entire problem--what do we do with the big fish who refuse all deals and efforts to persuade and exercise their right to remain silent? When the bomb goes off will people demand a new posse of FBI agents to chase down the perps as Holder and the JAG suggest? Or will they want another round of shock and awe?