A surrender to fear

    It’s never a pretty sight when public officials abandon their convictions and cave to hysteria. President Obama and Attorney General Eric Holder did so yesterday, with a spectacular flip-flop that exposed their political weakness.Seventeen months ago, Obama and Holder announced that the alleged 9/11 impresario, Khalid Sheikh Mohammed, would be prosecuted in federal civilian court, thereby demonstrating, to a world audience, the power and fairness and credibility of our time-honored constitutional values. Holder even said that the trial in Manhattan would be “the defining event of my time as attorney general.” Well, so much for that pledge. The new plan, announced yesterday, is to dump the civilian trial and instead route Mohammed through the military commission system in Guantanamo – thereby ensuring that this flip-flop will be the defining event of Holder’s tenure.The White House surrender was probably inevitable, given the fact that Obama’s critics consistently dominated the debate, infesting it with the usual demagoguery – and that the Obama team rarely bothered to fight back (no surprise there). Rather than frame their original pledge as a fundamental rule-of-law issue, and fight for it on that basis in the public square, Obama administration officials ceded the dialogue to the marketers of fear and the foes of empirical fact.Here are a few empirical facts: 9/11 conspirator Zacarias Moussaoui was successfully prosecuted – by the Bush administration – in a federal civilian court in Virginia. The ’93 World Trade Center bombers were successfully prosecuted in federal court. Failed shoe-bomber Richard Reid was hauled by the Bush administration to federal court, where he pleaded guilty. The failed Times Square bomber was taken last year to a civilian court, where he pleaded guilty and was jailed for life. A failed New York City subway bomber went the same route, and he too was jailed for life. And if those examples seem too anecdotal, here’s the statistical big picture: More than 400 terrorism suspects have been tried and convicted in civilian courts since 9/11. In fact, the Bush administration got 319 convictions in civilian courts (a 90 percent conviction rate); we know this, because the Bush administration boasted about its track record in a Justice Department document. The Bush pitch was that terrorism cases could indeed be prosecuted successfully in civilian courts while protecting sensitive national security information.In fact, back when the Bush team was using the civilian courts so frequently, prominent conservatives like Rudy “9/11” Giuliani were full of praise for the idea, declaring that it was a perfect way to display our freedoms to the world, to advertise the judicial fair play that has made us great, to trump the terrorist message with our own superior message. Giuliani even testified at the Moussaoui civilian trial and subequently said of the proceedings: “I was in awe of our system. It does demonstrate that we can give people a fair trial, that we are exactly as we say we are. We are a nation of law.”Holder and others in the administration had ample time, over this 17-month span, to trumpet the aforementioned facts; to allay the concerns voiced by various New Yorkers (especially the downtown business interests) and politicians (including some prominent Democrats, like Chuck Schumer); to rebut some of the nuttier hyperbole (such as the undocumented claim that Manhattan would require $1 billion in enhanced security), to fight the congressional bill that now bars the transport of Guantanamo inmates to America  – and even to speedily proceed with the trial itself. Instead, admninistration officials did virtually nothing. Holder himself addressed his critics with what The New Yorker called “lawyerly detachment.” Politics abhors a vaccum, and the fear marketers filled it.Holder did manage to say this yesterday: “The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system. Our national security demands that we continue to prosecute terrorists in federal court, and we will do so. Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.”Sounds about right. But why wasn’t he saying this all along? Why is the White House trumpeting its convictions now, when it’s too late to fight for them?It’s bad enough that the Obama team bungled the politics so badly. It’s arguably far worse that the attorney general of the United States ultimately allowed his prosecution decision to be swayed by the public mood. His office has been diminished. So has the American rule of law.

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