The Barack Obama of that Philadelphia speech would not have 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. And the Barack Obama of the speech would have enunciated a principle of law and not an ad hoc system in which some alleged terrorists are tried in civilian courts and some before military tribunals. What is the principle in that: What works, works?  Try putting that one on the Liberty Bell.

I point to this because it highlights an extreme logical fallacy coming from some Obama supporters ever since Holder announced the Guantanamo policy -- a fallacy that is the inevitable by-product of the administration's incoherent positions.  In order to defend Obama, it's necessary simultaneously to embrace these self-negating premises:

(1) The Rule of Law and our core political values require that terrorist suspects like Khalid Shiekh Mohammed be given trials (as Morrill put it:  "the Attorney General announced that the United States follows the rule of law");

(2) Obama is explicitly denying trials to many -- probably most -- of the Guantanamo detainees (as well as the "rendered" ones at Bagram), instead putting them before military commissions or, worse, indefinite detention with no charges;

(3) Obama should be praised as a courageous and principled leader because he's following the Rule of Law, which -- see #1 -- requires trials for terrorism suspects.

Isn't the core inconsistency of these premises obvious?  Even Richard Cohen can see it.  The administration's actual position -- we'll give trials to a handful of people we know we can convict and will continue to imprison them even if they're acquitted, while affirmatively denying trials to the rest -- is about as far from a principled or even cogent position as it gets.  Worse, it's impossible to defend Holder's decision to give a trial to Mohammed by appealing to "the rule of law" given that many of the detainees are being denied trials.  If (as Obama defenders insist) the "rule of law" requires trials, doesn't that mean, by definition, that Obama and Holder -- by using military commissions and indefinite detention -- are trampling on "the rule of law," not upholding it? 

To understand what has been happening with Obama's actions on the civil liberties front in general -- and how he came to embrace two core Bush/Cheney policies in particular (indefinite detention and military commissions) -- it's very worthwhile to read this new Time article by Massimo Calabresi and Michael Weisskopf on how and why White House Counsel Greg Craig was pushed out of his position.  In essence, Craig was the voice inside the administration insisting that Obama adhere to his civil liberties campaign pledges and dismantle the Bush/Cheney apparatus that progressives (and Obama) long claimed to find so objectionable.  But once Obama decided a few months into his presidency that he would not do so, Craig became disfavored and then, finally, pushed out:

Interviews with two dozen current and former officials show that Obama's public decision to reverse himself and fight the release of the [torture] photographs signaled a behind-the-scenes turning point in his young presidency. Beginning in the first two weeks of May, Obama took harder lines on government secrecy, on the fate of prisoners at Guantánamo Bay and on the prosecution of terrorists worldwide. The President was moving away from some promises he had made during the campaign and toward more moderate positions, some favored by George W. Bush.  At the same time, he quietly shifted responsibility for the legal framework for counterterrorism from Craig to political advisers overseen by Emanuel, who was more inclined to strike a balance between left and right.

Note how abandoning one's campaign promises and adopting Bush/Cheney detention and secrecy policies is now deemed "moderate" -- or, as the Time photo caption calls it, "pragmatic."  The White House began panicking as they were attacked by Dick Cheney and the Right for being "soft on terror," and the results were depressingly predictable:

Obama needed to regain control quickly, and he started by jettisoning liberal positions he had been prepared to accept -- and had even okayed -- just weeks earlier.  First to go was the release of the pictures of detainee abuse. Days later, Obama sided against Craig again, ending the suspension of Bush's extrajudicial military commissions.  The following week, Obama pre-empted an ongoing debate among his national-security team and embraced one of the most controversial of Bush's positions: the holding of detainees without charges or trial, something he had promised during the campaign to reject. . . . The unseen struggle took place in the spring, but the results are emerging now. On Nov. 13, Attorney General Eric Holder unveiled plans to try Guantánamo Bay detainees in federal courts, as preferred by liberals, but he also announced he would try other suspected terrorists using extrajudicial proceedings out of Bush's playbook.  The Administration is preparing to unveil its blueprint for closing the prison, but Obama will do so using some of the same Bush-era legal tools he once deplored.

None of this will be news to anyone following Obama's relentless and continuous embrace all year long of many of the "counter-terrorism" policies of the Bush administration -- ones which both he and progressives once claimed to find so intolerable.  But particularly striking is this on-the-record justification offered by a White House spokesman:

The White House says Obama hasn't changed, just adjusted. "He and the Administration have adapted as we have learned more and the issues have evolved, but there has not been an ideological shift," says spokesman Ben LaBolt.

By embracing and defending numerous Bush/Cheney policies he once deplored, "Obama hasn't changed, just adjusted."  He's learned secret things that he can't tell you about but which -- you should accept -- do justify his "adaptations."  Whenever Bush followers would run out of arguments to defend their leader's actions, that's the same rationale they'd resort to:   he knows secret things that you don't know and therefore we should trust him.   So Obama has "learned" things that caused him to abandon his vehement condemnations of indefinite detention, state secrets, military commissions and denial of habeas corpus as unjust and un-American travesties and come to embrace them as important and necessary policies?   Wow:  that must have been quite an education.  Don't he and his supporters owe George Bush and Dick Cheney a sincere apology for criticizing them all those years for these policies when, as it turns out, they were necessary and just all along?  And see this insightful argument that makes a related point.

So one of the very few pro-civil-liberties insiders with any power is now gone, replaced by a supremely partisan Washington insider with little apparent interest in those values.   One of Obama's most impressive and exciting appointments -- Dawn Johnsen to head the OLC -- has still not been confirmed despite a 60-seat Democratic Senate.  Instead, the former CIA official who defended so many of the Bush-era terrorism policies, John Brennan, remains as Obama's top counter-terrorism adviser.  And Rahm Emanuel -- he of the "build-power-by-increasing-Blue-Dogs" mentality and a driving force behind last year's Congressional enactment of telecom immunity and warrantless eavesdropping -- continues to consolidate power even in these supposedly non-political areas.  Given all of that -- and with the 2010 midterms approaching -- does anyone think these trends will improve rather than worsen?

Whether Obama has adopted every last radical Bush/Cheney terrorism policy -- he hasn't -- is not the point.  And the question of whether "Obama is as bad as Bush" -- he isn't -- is no more relevant than the excuse that Bush's torture program shouldn't be criticized because at least it never reached the level of Saddam's rape rooms and limb removals.  As even Time now recognizes, many of the policies once widely declared by Democrats to be a grave threat to the Constitution are now explicitly adopted by the Obama administration.  And it's flatly inconsistent to invoke "the rule of law" to defend Obama's decision to give trials to a few Guantanamo detainees without pointing out that he's violating that very same precept by denying trials to so many.

 

UPDATE:  The Nation's Jeremy Scahill reveals that the U.S. military is using Blackwater -- Blackwater -- as part of "a secret program in [Pakistan in] which they plan targeted assassinations of suspected Taliban and Al Qaeda operatives."  McClatchy reports that Obama has made a decision to send 34,000 more troops to Afghanistan which, if true, means, as Juan Cole says, that "Gen. Stanley McChrystal has won the struggle for policy decisively."  

So, to recap:  we have indefinite detention, military commissions, Blackwater assassination squads, escalation in Afghanistan, extreme secrecy to shield executive lawbreaking from judicial review, renditions, and denials of habeas corpus.  These are not policies Obama has failed yet to uproot; they are policies he has explicitly advocated and affirmatively embraced as his own.

And if you haven't seen or read Bill Moyers' amazing -- and obviously relevant -- examination this week of how and why President Johnson escalated the war in Vietnam, I can't recommend highly enough that you do so.

 

UPDATE II: Nick Baumann of Mother Jones examines other aspects of the Time article that he calls "troubling," and makes some important points about what all of this reflects about Obama and his civil liberties commitments.

 

UPDATE III:  This new 7-minute video from Brave New Films and Robert Greenwald (no relation) synthesizes many of these issues, as it features interviews with Afghan citizens who were imprisoned with no charges and abused by the U.S. at Bagram for years.  I realize it's far more important to know what Les Gelb and the Brookings Institution think about such things, but every now and then it's worth hearing from Afghans about their own country, too.  In this case, their commentary about the impact of our detention policies and occupation is well worth hearing:

To see how false this claim is, all anyone ever had to do was look at the Classified Information Procedures Act, a short and crystal clear 1980 law that not only permits, but requires, federal courts to undertake extreme measures to ensure the concealment of classified information, even including concealment from the defendant himself.  Section 3 provides:  "Upon motion of the United States, the court shall issue an order to protect against the disclosure of any classified information disclosed by the United States to any defendant in any criminal case in a district court of the United States."  Section 9 required the Chief Justice of the Supreme Court to consult with the Attorney General and Defense Secretary to develop rules to carry out the Act's requirements, and the resulting guidelines provide for draconian measures so extreme that it's hard to believe they can exist in a judicial system that it supposed to be open and transparent.

To see how severe these secrecy measures are, consider what is currently being done in the criminal case of Ahmed Khalfan Ghailani, the first accused Terrorists sent by the Obama administration to New York to stand trial after being interrogated and tortured for years in CIA black sites and at Guantanamo with no charges:

To ensure that secrets do not leak, Judge Kaplan has imposed a protective order on all classified information, which may be reviewed by the defense lawyers only in a special "secure area," a room whose location has not been disclosed.

The order covers all materials that might "reveal the foreign countries in which" Mr. Ghailani was held from 2004 to 2006  -- the period when he was in the secret jails -- and the names and even physical descriptions of any officer responsible for his detention or interrogation, the order says.

It also covers information about "enhanced interrogation techniques that were applied" to Mr. Ghailani, "including descriptions of the techniques as applied, the duration, frequency, sequencing, and limitations of those techniques."

The defense lawyers, who had to obtain security clearance, cannot disclose the information to Mr. Ghailani without permission of the court or the government. Any motions they write based on the material must be prepared in the special room, and nothing may be filed publicly until it is reviewed by the government.

So, last Monday, when Mr. Ghailani’s lawyers filed a motion seeking dismissal of the charges because of "the unnecessary delay in bringing the defendant to trial," they included only a few mostly blank cover sheets.

The rest of the motion, which presumably offers rich details about Mr. Ghailani’s time in detention, remains secret, and a censored version will be made public only after it is cleared by the government.

Does that sound like a judicial process incapable of concealing secrets, or does it sound more like a Star Chamber where the justice system operates in the dark, even to shield government torture and illegal prisons from disclosure?  Many federal judges -- particularly in criminal cases -- are notorious for being highly sympathetic to the government.  That's even more true in a case involving one of the most hated criminal defendants ever to be tried in an American court, sitting a very short distance from the site where he is alleged to have killed 3,000 people in a terrorist attack.  And note that the law permits the judge no discretion:  if the Government claims something is classified, then "the court shall issue an order to protect against the disclosure of any classified information."  With some exceptions, ever since the "War on Terror" began, nobody has safeguarded government secrets as dutifully and subserviently as federal judges -- even when those secrets involve allegations of war crimes and other serious felonies.  That's what DOJ officials mean when they keep praising Southern District of New York judges for their supreme competence and expertise in handling terrorism cases.  Federal courts in general love to keep what is supposed to be their open proceedings a secret, but that instinct is magnified exponentially in national security and terrorism cases.

Even during the Bush years, numerous defendants accused of terrorist acts were tried and convicted in federal courts -- John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla.  Those spewing the latest right-wing scare tactic (Osama bin Laden will learn everything if we have trials!) cannot point to a single piece of classified information that was disclosed as a result of any of these trials.  If that were a legitimate fear, wouldn't they be able to?  Like most American institutions, our federal court system is empowered to shield from public disclosure anything the government claims is secret. Just look at the extreme measures invoked in the Ghailani case to see how true that is.

 

UPDATE:  As indicated, nobody -- including the right-wing fear-mongers -- can claim that any of the numerous terrorist trials conducted over the last ten years resulted in the release of any classified or other harmful information.  Standing alone, that fact illustrates how baseless is this fear; if "disclosure of sensitive information" were a real risk, wouldn't they be able to point to instances where that happened during any of the numerous Bush-era terrorist trials?

The sole example cited by the Right is the 1995 trial of accused World Trade Center bomber Sheikh Omar Abdel Rahman.  Both Andrew McCarthy, who was one of the prosecutors in that case, and former Bush Attorney General Michael Mukasey, who was the judge presiding over the trial, have made the claim that the Rahman trial resulted in the disclosure of secret information that Osama bin Laden somehow used to his benefit. 

Even leaving to the side the fact that these two individuals are among the most extreme right-wing ideologues who always insist that we must abandon our normal rules of justice lest we get slaughtered by the Terrorists, one of two things is true regarding their claim about that trial:  either (1) McCarthy and/or Mukasey failed to use the protections of CIPA to prevent the disclosure of classified information, which means the disclosures were the result of their ineptitude or disregard for the law, not a natural by-product of terrorist trials; or (2) the released information was not "classified," which -- given how the U.S. Government classifies virtually everything it can find -- renders highly dubious their fear-mongering claim that Osama benefited from non-classified information released at the 1995 trial.  Adam Serwer elaborates on this latter point here.

[I]ncreasingly, after years of issuing denials, Lithuania's leaders are no longer ruling out the possibility that the CIA operated a secret prison in this northern European country of 3.5 million people, and that its government will have to deal with the fallout.

Last month, newly elected President Dalia Grybauskaite said she had "indirect suspicions" that the CIA reports might be true, and urged Parliament to investigate more thoroughly.

What sort of a newly elected President would get into office and then start demanding that actions From the Past -- rather than the Future -- be investigated, just because they might be "criminal"?  This deeply irresponsible Lithuanian leader apparently doesn't care about inflaming partisan divisions, and worse, appears blind to the dangers of criminalizing policy disputes.  Even more outrageously, Lithuania faces one of the steepest recessions in all of Europe; obviously, this is a time, more than ever, that Lithuanians should be Looking to the Future, Not the Past.  Instead, they're wallowing in deeply inflammatory, partisan and extremist rhetoric like this:

Valdas Adamkus, who was president when the CIA prison was reportedly in operation, from 2004 until 2005, said he had no personal knowledge of the covert program. But he raised the possibility that Lithuanian security officials could face prosecution if the reports are confirmed.

"If this actually did occur, and it is grounded with proof, we have to apologize to the international community that something like this went down in Lithuania," he told the Baltic News Service. "And those who did it," he added, "in my eyes are criminals" . . . .

Dainius Zalimas, a legal adviser to the Lithuanian Defense Ministry, said the existence of a covert prison would violate both Lithuanian statutes and international human rights conventions that the government signed.  If firm evidence is gathered by the Parliament, he said, prosecutors would be obliged to open a case and could target both Lithuanian and U.S. officials.

"From a legal point of view, it would mean that Lithuania, along with the United States, was contributing to quite serious violations of human rights," said Zalimas. . . .

"Criminals"?  "Prosecutions"?  "Obliged to open a case"?  "Violations of human rights"?  Just because they maintained a few secret prisons in violation of domestic and international law?  What kind of crazy, purist, Far Leftist utopians are running that place?  They need a heavy dose of pragmatism so they can understand all the reasons why so-called "crimes" like this can be overlooked -- just blissfully forgotten like a bad dream.  Even worse, with intemperate and shrill language of the type they're throwing around, it's seems clear that the Lithuanian press is sorely in need of some David Broders, Fred Hiatts, and David Ignatiuses to explain to them that subjecting law-breaking political officials to "investigations" and "prosecutions" is quite disruptive and unpleasant when those crimes involve matters other than consensual sex between adults.

Even more alarming, this "rule of law" and "human rights" fetish seems to be spreading: "In neighboring Poland, prosecutors in the capital of Warsaw have opened a criminal probe into reports that the CIA operated a prison for al-Qaeda suspects near a former military air base."  Last month, an Italian court convicted 22 CIA agents of the so-called "crime" of kidnapping someone off their street and sending him to Egypt to be tortured.  And the British High Court this week released its written Opinion -- over the objections of British and American officials -- ordering the release of details of Binyam Mohamed's torture at the hands of U.S. agents.

Thankfully, the U.S. remains a bastion of pragmatic sanity in this rising sea of accountability extremism.  Unlike those strange Eastern Europeans and absolutist Western European purist judges, we know there are far more important priorities than "investigating" war crimes, compelling transparency, and holding political criminals accountable.  As the rest of the world gets distracted by all this chatter about The Past, our President gallantly protects us from such divisive unpleasantries by aggressively blocking any war crimes investigations and concealing evidence -- even modifying decades-old transparency laws to do so if necessary.  Even more inspiring, our patriotic media enthusiastically plays a crucial helping role; The Washington Post has known since 2005 in exactly which countries the CIA maintained its illegal, secret prisons but still refuses to say, even though they've now been banned by Executive Order and even though Lithuania and Poland are launching investigations which the Post could easily answer, but chooses not to.

When President Obama was in China last week, he proudly boasted of the American commitment to transparency and lamented that China lacked such values.  Fortunately, he doesn't get carried away with "principles" the way that these short-sighted Lithuanians and Polish and others do.  Unlike those unhinged primitive nations with no democratic traditions, we understand that government crimes should be disclosed, investigated and punished only when they occur during a time other than the Past.  It's vital that we maintain our leadership role in teaching this critical value to the world, lest the type of crazed accountability/rule-of-law fetish currently engulfing Lithuania spreads even further like some uncontrollable virus.

 

UPDATE:  Jonathan Schwarz notes that in 2005, Donald Rumsfeld traveled to Lithuania and visited a museum in Vilnius which once housed a KGB prison, where the Soviets tortured prisoners.  That museum exhibits "solitary confinement rooms which were used to break down the prisoners and make them confess."  Shockingly, "the walls are padded and soundproofed, made to absorb the cries and shouts for help," as it was the site of barbaric acts like this:

Prisoners either had to stand in ice-cold water or to balance on a small platform. Every time they got tired they fell down into the water.

After his visit, Rumsfeld released an "Open Letter to the People of Vilnius," in which he solemnly observed that "the museum was a stark reminder of the importance of preserving our liberty at all costs."  Schwarz asks:  "Did Rumsfeld Tour KGB Torture Museum to Pick Up Useful Tips?"  

 

UPDATE II:  Here's a Getty photograph of what Rumsfeld called his "enjoyable and educational" trip to the KGB prison, accompanied by this apparently un-ironic caption:  "Rumsfeld tours Lithuania’s KGB Museum, a torture site during the Stalin era, in October 2005" (h/t sysprog).

In an unprecedented defeat for the Federal Reserve, an amendment to audit the multi-trillion dollar institution was approved by the House Finance Committee with an overwhelming and bipartisan 43-26 vote on Thursday afternoon despite harried last-minute lobbying from top Fed officials and the surprise opposition of Chairman Barney Frank (D-Mass.), who had previously been a supporter.

Grim details how key Committee Democrats such as Frank -- who spent the year claiming to support an audit of the Fed in the face of rising anger over its secret and bank-subservient policies -- suddenly introduced their own amendment (sponsored by Democratic Rep. Melvin Watt) that would have essentially gutted the Paul/Grayson provisions.  Banking industry and Fed officials, as well as the Democratic leadership, then got behind that alternative provision as a means of pretending to support transparency while protecting the Fed from any genuine examination.  Notwithstanding the pressure exerted on Committee Democrats to support that watered-down "audit" bill, Grayson convinced 15 of his colleagues to join with Republicans to provide overwhelming support for the Paul/Grayson amendment.  As Grim notes:

[Frank] urged a no vote, yet 15 Democrats bucked him, voting with Paul.  Key to winning Democratic support was a letter posted early Thursday from labor leaders and progressive economists. The letter, organized by the liberal blog FireDogLake.com, called for a rejection of the Watt substitute and support for Paul.

Grayson was able to show Democratic colleagues that the liberal base was behind them.

"Today was Waterloo for Fed secrecy," a victorious Grayson said afterwards.

The bill still faces substantial hurdles in becoming law, of course, but yesterday's vote has made that outcome quite possible, and it's worth noting several important points highlighted by what happened here:

(1) Our leading media outlets are capable of understanding political debates only by stuffing them into melodramatic, trite and often distracting "right v. left" storylines.  While some debates fit comfortably into that framework, many do not.  Anger over the Wall Street bailouts, the control by the banking industry of Congress, and the impenetrable secrecy with which the Fed conducts itself resonates across the political spectrum, as the truly bipartisan and trans-ideological vote yesterday reflects.  Populist anger over elite-favoring economic policies has long been brewing on both the Right and Left (and in between), but neither political party can capitalize on it because they're both dependent upon and subservient to the same elite interests which benefit from those policies.

For that reason, many of the most consequential political conflicts are shaped far more by an "insider v. outsider" dichotomy than by a "GOP v. Democrat" or "Left v. Right" split.  The pillaging of America's economic security by financial elites, with the eager assistance of the government officials who they own and who serve them, is the prime example of such a conflict.   The political system as a whole -- both parties' leadership -- is owned and controlled by a handful of key industry interests, and anger over the fact is found across the political spectrum.  Yesterday's vote is a very rare example where the true nature of political power was expressed and the petty distractions and artificial fault lines overcome.

(2) As Grim expertly describes, the effort to defeat the Paul/Grayson amendment came from all of the typical Washington power centers using all of the establishment's typical manipulative tools:

The playbook in Washington often goes like this: When a measure that threatens the establishment builds enough momentum that it must be dealt with, it is labeled as "unserious." The Washington Post editorial board, true to the script, called Paul's measure "an unserious answer to a serious question."

And it particularly rankles the center that a pair of "wingnuts " [Paul and Grayson] are behind a successful effort to challenge the prevailing order.

Step Two is for a "serious" compromise to be offered. In this case, it was Watt's amendment. But by the time the vote was called Thursday afternoon, committee members had seen through his measure, recognizing that it was not a compromise effort to bring real transparency to the Fed but an attempt to further shut the doors.

One can count on one hand the number of times that establishment attacks like this fail, but this time -- at least for now -- it did.  And it reveals a winning formula:  where there is a strong and principled leader in Congress willing to defy the Party's leadership and the Washington establishment (Grayson), combined with leading experts lending their name to the effort (economists Dean Baker and James Galbraith), organizations standing behind it (labor groups), and a shrewd and driven organizer putting it all together (FDL's Jane Hamsher), even the most powerful forces and opinion-enforcers can be defeated, as they were here.  Those progressive advocates' refusal to be distracted by trite partisan considerations, and their reliance on substantial GOP support to pass the bill (as hypocritical as the GOP's position might have been), was particularly crucial -- and smart.

(3) Beyond the specifics, a genuine audit of the Fed would be a major blow to the way Washington typically works.  The Fed is one of those permanent power centers in this country that exert great power with very little accountability and almost no transparency (like much of the intelligence and defense community).  The power they exert has exploded within the last year as a result of the financial crisis, yet they continue to operate in a completely opaque manner and with virtually no limits.  Its officials have been trained to view their unfettered power as an innate entitlement, and they express contempt for any efforts to limit or even monitor what they do.  

In other words, the Fed is a typical Washington institution that operates un-democratically and in virtually total secrecy, and a Congressionally-mandated audit that they (and much of the DC establishment) desperately oppose would be a serious step towards changing the dynamic of how things function.  At the very least, it would provide an important template for defeating the interests which, in Washington, almost never lose.  At least yesterday, those interests did lose -- resoundingly -- and the importance of that should not be overlooked.

* * * * * 

Can anyone reconcile Obama's homage to "our legal traditions" and his professed faith in jury trials in the New York federal courts with the reality of what his administration is doing:  i.e., denying trials to a large number of detainees, either by putting them before military commissions or simply indefinitely imprisoning them without any process at all?

During his appearance before the Senate Judiciary Committee yesterday, Eric Holder struggled all day to justify his decision to put Khalid Sheikh Mohammed on trial because he has no coherent principle to invoke.  He can't possibly defend the sanctity of jury trials in our political system -- the most potent argument justifying what he did -- since he's the same person who is simultaneously denying trials to Guantanamo detainees by sending them to military commissions and even explicitly promising that some of them will be held without charges of any kind. 

Once you endorse the notion that the Government has the right to imprison people not captured on any battlefield without giving them trials -- as the Obama administration is doing explicitly and implicitly -- what convincing rationale can anyone offer to justify giving Mohammed and other 9/11 defendants a real trial in New York?  If you're taking the position that military commissions and even indefinite detention are perfectly legitimate tools to imprison people -- as Holder has done -- then what is the answer to the Right's objections that Mohammed himself belongs in a military commission?  If the administration believes Omar Khadr belongs in a military commission, and if they believe others can be held indefinitely without any charges, why isn't that true of Khalid Sheikh Mohammed?  By denying jury trials to a large number of detainees, Obama officials have completely gutted their own case for why they did the right thing in giving Mohammed a trial in New York.

Even worse, Holder was reduced to admitting -- even boasting -- that this concocted multi-tiered justice system (trials for some, commissions for others, indefinite detention for the rest) enables the Government to pick and choose what level of due process someone gets based on the Government's assessment as to where and how they're most likely to get a conviction:

Courts and commissions are both essential tools in our fight against terrorism . . . On the same day I sent these five defendants to federal court, I referred five others to be tried in military commissions.  I am a prosecutor, and as a prosecutor, my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case with the best law. . . . At the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is a federal court.

Does that remotely sound like a "justice system"?  If you're accused of being a Terrorist, there's not one set procedure used to determine your guilt; instead, the Government has a roving bazaar of various processes which it, in its sole discretion, picks for you based on ensuring that it will win.  Even worse, Holder repeatedly assured Senators that the administration would continue to imprison 9/11 defendants even in the very unlikely case that they were acquitted, citing what they previously suggested was their Orwellian authority of so-called "post-acquittal detention powers."  Is there any better definition of a "show trial" than one in which the defendant has no chance of ever being released even if acquitted, because the Government will simply thereafter assert the power to hold him indefinitely without charges?  

I understand that sending even a limited number of Terrorism suspects to federal court is politically difficult and controversial, as the last couple of days have demonstrated.  But by refusing to embrace and defend the core principle of justice at stake here -- that a distinguishing feature of our political system is that we don't imprison or kill people without charging them with a crime and proving their guilt in a real court, and that military commissions and indefinite detention are un-American (which Democrats argued under Bush) -- the Obama administration has made it far more difficult for it to defend what it is doing, as well as for those who want to defend their decision to give trials to 9/11 defendants.

To see how that works, here is part of the exchange I had on MSNBC this week with George Pataki, while debating trials for 9/11 defendants:

MR. GREENWALD:  If you look at how the British treated the people who did the London subway bombings, the Spanish who treated the people who did the Madrid subway bombings -- even India just put on trial the sole surviving terrorist who perpetrated the Mumbai massacre last year. Even Indonesia gave trials in their real cities to the people who blew up the nightclubs in Bali.

It's only the American conservatives who are feeding the terrorist agenda by saying that we're too scared to hold trials --

MR. RATIGAN: Hold on, Glenn.

MR. PATAKI: Can I respond to that, Dylan? Only the -- only the -- only the American conservatives? Then tell me why Obama and Holder are using military tribunals against those who blow up Americans in acts of war overseas?  They're just picking these particular terrorists for trial in New York because they blew up civilians in New York. So what their logic is, "Kill thousands of civilians and you can get a civilian trial; kill one or two overseas, and we're going to use military tribunals."

That makes no sense.

For those wanting to defend the administration, what's the answer to that?  The same thing happened when Rep. Nadler, as part of the same segment, tried to defend the Obama administration's decision to try the 9/11 defendants in New York:

REP. NADLER:  I think that our tradition is that people accused of heinous crimes get trials, and they get trials in the area in which the crime is committed, which is right here. And I think it's exactly the right thing to do. . . .That's the way it ought to be, and we ought to show the world that we adhere to our traditions of justice and that these terrorists are not going to cause us to abandon the law.

MR. PATAKI: ... We are going to use military tribunals. They're saying they're perfectly fine for some terrorists, but these terrorists they're going to try here. What's the justification for that, Jerry?

REP. NADLER: Well, I -- well, I don't think there is any justification.

MR. PATAKI: I don't either.

The administration should have the courage of its convictions and defend jury trials as a linchpin of American justice, which would entail giving them to all Terrorism suspects not captured on any battlefield.  But by refusing to do so -- by exhibiting the very cowardice of which Holder accused Republicans, i.e. denying Terrorism suspects a trial -- the administration has no cogent argument to make in its own defense.  It's just another case of the administration wanting to bask in the rhetorical glory of "the rule of law" while simultaneously trampling on it for petty political convenience.

 

UPDATE:  The blogger Patterico -- who, notably, is a prosectuor himself and thus inclined to be empathetic with prosecutorial goals -- nonetheless compiles additional evidence to criticize Holder's decision as follows:

You can see that what we have is an administration that is choosing where to try the detainees, not based on some principle or neutral protocol (as they claim), but based on where they can win. They’re rigging the game.

And if they lose, they won’t let him go anyway.

This is just further evidence that the KSM trial will be a show trial.

It's worth reading the arguments from a prosecutor about why the administration's conduct is such a breach of basic justice, even as they cynically wrap themselves in the rhetoric of the sanctity of jury trials and the rule of law.

 

UPDATE II:  For a crystal clear refutation of the claim that it's normal to use military commissions for the crimes at issue here, see this comment from the always-enlightening Pow Wow, which is based on this equally enlightening interview by Marcy Wheeler of Lt. Col (and now-Law Professor) David Frakt, highlighting the numerous myths on which the case for military commissions is predicated.