Eric Posner accurately describes Eric Holder’s decision to try KSM in a civilian court:
[T]he Obama administration has decided to offer a two-tiered system of justice. We might call them the “high-quality” (civilian) tier and “low-quality” (military) tier. The high-quality approach offers greater accuracy; the low-quality approach offers less accuracy. The Obama administration will use the high-quality system against people when it has a strong case, and the low-quality system against people when it has a weak case.
To which Ross Douthat adds:
As a political matter, I can see the case for the two-tiered system. But it still strikes me as transparently unprincipled. In practice, it means that all of our terrorist enemies will be treated as enemy combatants while we’re hunting them, fighting them, capturing them and interrogating them. But then depending on the circumstances of their capture, the harshness of their interrogations, and weight of the evidence against them, we’ll decide — based more on PR considerations than on principle — that a few of them deserve the protections of the American legal system, even if the rest of them don’t.
American conservatives seem to understand this, but are playing the fool. Charles Krauthammer writes:
What happens if KSM (and his co-defendants) “do not get convicted,” asked Senate Judiciary Committee member Herb Kohl. “Failure is not an option,” replied Holder. Not an option? Doesn’t the presumption of innocence, er, presume that prosecutorial failure — acquittal, hung jury — is an option? By undermining that presumption, Holder is undermining the fairness of the trial, the demonstration of which is the alleged rationale for putting on this show in the first place.
Krauthammer correctly notes that Holder’s statement “undermin[es] the fairness of the trial,” but doesn’t seem to understand that the trials will still serve their propagandistic purposes. Similarly, Mona Charen of the National Review writes:
But Holder says he’ll be found guilty. Isn’t that a perversion of our jurisprudence? If a not-guilty verdict is impossible, then the trial is a sham. “Sentence first — verdict afterwards,” said the Queen of Hearts.
Moreover, the Justice Department has assured Sen. Jon Kyl that “we will not release anyone into the United States if doing so would endanger our national security or the American people.” So in the event that KSM is acquitted, it’s the position of the Obama Justice Department that we would continue to hold him? How does that outcome burnish the reputation of our justice system?
Logical question, that last one, but propaganda and logic have little to do with one another. Charen goes on to accuse Holder of “not thinking things through.” Quite the opposite: the Justice Department will select legal venues based on which venue will better ensure a guilty verdict while propagandistically asserting deference to the rule of law.
