A year ago, Attorney General Eric Holder told me that the trial of 9/11-mastermind Khalid Sheikh Mohammed would serve as “the defining event of my time as attorney general.” Well, Holder may be right, but not in the way that he meant it at the time.
Today’s news that K.S.M. is slated now for a military commission in the naval base at Guantánamo Bay, rather than facing a criminal trial in the civilian justice system that Holder believed was more fitting, may indeed be the defining moment for the Obama Justice Department, defining it, unfortunately, as incapable of standing up to to the political passions still stirred by the threat of terrorism.
Holder and some of the smartest prosecutors in the country had prepared what they believed was the strongest case possible against K.S.M. Lawyers involved in the effort told me they had spent years on it, and had files filled with killer evidence, just waiting for trial. Careers had been devoted to compiling an impeccable case. By using the civilian justice system, Holder had wanted to send several important messages, among them that terrorists are criminals, not some new breed of super warrior, and that the U.S. legal system is the strongest, fairest, and most credible system in the world. A guilty verdict arrived at in front of the world, in a public trial, with ordinary citizens sitting in judgment of K.S.M., would be internationally accepted as legitimate, in a way that no military tribunal ever will be. Or so the thinking went.
Experts say that the military tribunals’ standards are far higher than they were during the early Bush days, and that K.S.M. is likely to get a fair trial in Guantánamo, too. But regardless of the reality, the forum will always seem tainted by politics, allowing the most heinous terrorist in the world to claim that he is America’s victim, rather than the other way around. At his press conference today, Holder said, “I have to deal with the situation as I find it.”
Despite Holder’s defiant reiteration today of his preference for trying K.S.M. in the federal courts, human-rights advocates were critical. “The administration has gone to great lengths to defend its authority to make these decisions, but has done little to exercise it,” Human Rights First president Elisa Massimino said. “Holder’s defense of executive prerogative today is stirring, but it comes too late without White House backing. The administration had months to act before Congress tied its hands on this. It failed to do so. There’s no substitute for leadership on this issue—and it has to come from the top. Without it, you get what we have today: capitulation to the agenda of fear.”
Illustration: Finn Graff.
