Courting Trouble

I know I said I’d lay off this stuff, but what the heck. In today’s edition of the WSJ’s Best of the Web, James Taranto offers the following:

On Wednesday we noted that President Obama defended his decision to try Khalid Sheikh Mohammad as a civilian by declaring that the outcome is preordained: KSM will be convicted and put to death. This appears to be not just bluster but the administration’s actual position. Power Line’s John Hinderaker notes that Attorney General Eric Holder, testifying before the Senate Judiciary Committee, made a similar statement under questioning from Sen. Herb Kohl, a Wisconsin Democrat:

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”? Is Eric Holder attorney general of the United States or some unctuous motivational speaker?

Kohl’s question is highly pertinent, and Holder simply evaded it. No one is suggesting that failure to win and sustain a conviction is an “option,” but it is a contingency for which it is shocking that the administration is, or at least claims to be, unprepared.

Further, Obama’s and Holder’s assurances that KSM will be convicted (and, according to the president, “put to death”) make a mockery of due process. Nothing is more fundamental to America’s criminal justice system than the presumption of innocence, and if terrorist detainees are to be treated as criminal defendants, they are entitled to that presumption.

For the sake of political expediency, Obama and Holder are refusing even to make a pretense of respect for due process. If KSM & Co. are convicted and put to death, America’s critics and enemies will point to Obama and Holder’s assurances in arguing that the defendants were subjected to sham justice. Nice work restoring America’s moral standing, Mr. President.


  1. Peter, the one eyed man says

    I came not to argue, but to make a suggestion.

    Political threads here invariably quote from the same group of like-minded individuals: Jonah Goldberg, the Wall Street Journal, Norman Podhoretz, and so forth.

    My suggestion would be to take the opposite approach, and find an opposing view and deconstruct it. Not a pantywaist liberal like Alan Colmes, but something from a well-reasoned and thoughtful source, whether it is liberal (e.g., Glenn Greenwald or Rachel Maddow) or centrist (e.g., the New York Times or the Economist).

    I mean, if you’re going to rigorously analyse these issues, it makes sense to leave the echo chamber and point out the putative weaknesses in the arguments of the other side …

    Posted November 21, 2009 at 6:55 pm | Permalink
  2. JK says

    I “think” it’s spelled, panty waste.

    Posted November 21, 2009 at 11:05 pm | Permalink
  3. Malcolm says

    No, JK, it’s ‘pantywaist’. Sorry.

    Peter, the party whose remarks are being quoted here are those of Eric Holder, the Obama administration’s Attorney General. That IS the opposing view. Taranto expressed exactly what I would have said, and it was simpler just to quote him, as he had already done the heavy lifting.

    You may recall that I quoted Jonah Goldberg in a very recent post precisely because I disagreed with him sharply, and wanted to rebut his position.

    When I repost items from other writers, it is either because I disagree and want to explain why, or because I agree and feel that the author has already done a good job of making an important point.

    Posted November 21, 2009 at 11:28 pm | Permalink

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