Lindsay Graham frequently drives us crazy, but it can’t be denied that he has his moments. In today’s Senate Judiciary Committee hearing, he took Eric Holder to the woodshed:
Graham is right, of course. Under the Obama administration’s policies, if we capture Osama bin Laden tomorrow, the first thing we will have to do is read him his rights, and the second is get him a lawyer at taxpayer expense. The argument that Holder tries to interpose–maybe we won’t have to Mirandize bin Laden because the evidence of his guilt is “overwhelming”–is pathetic. Can you imagine trying to explain to a federal judge that a criminal defendant had a constitutional right to have his rights read to him, but you skipped that step because the evidence of his guilt is overwhelming? The fact that the Obama administration needs to resort to such silly evasions demonstrates that its policy is indefensible.
To the extent that the Obama administration tries to justify its criminalization of the war against terror, its excuse is that doing so “vindicates the rule of law.” But, as Holder’s exchange with Graham showed, the administration is happy to abandon the “rule of law” as soon as it becomes inconvenient. In that regard, one basic question has always been, what happens if we prosecute Khalid Sheikh Mohammed and his confederates and the result is an acquittal or a hung jury? Senator Kohl asked Eric Holder that question today:
KOHL: Mr. Holder, last week you announced that the department will bring to Guantanamo detainees accused of planning the 9/11 attacks to trial in federal court in New York, as we’ve talked about this morning. On Friday you said that you’d not have authorized prosecution if you were not confident that the outcome would be successful. However, many critics have offered their own predictions about how such a trial might well play out.
One concern we have heard from critics of your decision is that the defendants could get off on legal technicalities, in which case these terrorists would walk free. Does this scenario have any merit? If not, why? And in the worst case scenario that the trial does not result in a conviction, what would be your next steps?
HOLDER: Many of those who have criticized the decision — and not all — but many of those who have criticized the decision have done so, I think, from a position of ignorance. They have not had access to the materials that I have had access to.
They’ve not had a chance to look at the facts, look at the applicable laws and make the determination as to what our chances of success are. I would not have put these cases in Article III courts if I did not think our chances of success were not good — in fact, if I didn’t think our chances of success were enhanced by bringing the cases there. My expectation is that these capable prosecutors from the Justice Department will be successful in the prosecution of these cases.
KOHL: But taking into account that you never know what happens when you walk into a court of law, in the event that for whatever reason they do not get convicted, what would be your next step? I’m sure you must have talked about it.
HOLDER: What I told the prosecutors and what I will tell you and what I spoke to them about is that failure is not an option. Failure is not an option. This — these are cases that have to be won. I don’t expect that we will have a contrary result.
Failure is not an option! Let’s hope that’s true, in the sense that if a jury acquits KSM or fails to reach a verdict, he would be kept in custody anyway. But, that being the case, isn’t the criminal prosecution fundamentally fraudulent? Barack Obama, like Eric Holder, has assured the American people that KSM will be convicted:
In one of a series of TV interviews during his trip to Asia, Obama said those offended by the legal privileges given to Muhammed by virtue of getting a civilian trial rather than a military tribunal won’t find it “offensive at all when he’s convicted and when the death penalty is applied to him.”
Obama quickly added that he did not mean to suggest he was prejudging the outcome of Mohammed’s trial. “I’m not going to be in that courtroom,” he said. “That’s the job of the prosecutors, the judge and the jury.”
Can you imagine any other context in which the President of the United States would assure the public that a criminal defendant is guilty; that he will be convicted by a jury; and that he will be executed? Such comments make a mockery of the “rule of law” as normally understood.
It’s true, of course, that Osama bin Laden and Khalid Sheikh Mohammed are obviously guilty of the terrorist attacks of which they proudly boast. We don’t need a judge and jury to tell us this. In my view, we would be amply justified in simply shooting them.
But if only one jury verdict is acceptable; if the President is willing to assure the American people of conviction; if acquittal or a hung jury is “not an option;” if, assuming such a result, the defendant would be returned to prison anyway–then it is ridiculous to say that we are going through this charade in order to “vindicate the rule of law.”
UPDATE: More here.