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Khalid Sheikh Mohammed And An Independent Department Of Justice

The upcoming trial of Khalid Sheikh Mohammed has revealed that a whole lot of people have totally and utterly forgotten the way our system of justice is designed to operate.
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This column is really a second installment to yesterday's ("How To Not Give Khalid Sheikh Mohammed What He Wants"), where I took a look at two of the criticism's against Attorney General Eric Holder's decision to try the accused mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, in federal civilian court rather than in a military tribunal.

I ended yesterday's column with a summary of my two points (in case you don't feel like reading the whole thing):

The first is that the media must decide whether there will be a "media circus" at K.S. Mohammed's trial because they -- not him -- are the ones who have it in their power to either facilitate such or voluntarily ban it from the airwaves. And secondly, Attorney General Holder is not "playing into the hands" of K.S. Mohammed by denying him a military trial, he is instead refusing to give K.S. Mohammed what he wants -- a glorious warrior's death. Instead, he will be treated like any common criminal, because if the charges against him are proven in court, that is exactly what he is.

Today I'd like to tackle the biggest fallacy in the criticisms being voiced -- the biggest un-noticed elephant in the room in which this discussion is being held. As I said yesterday, I was truly surprised Holder's decision was even controversial. But then, these days, it seems just about everything is ginned up as a "controversy" by certain politicians, aided and abetted by a media which "just loves themselves a fight" -- any fight.

But in all this smoke and noise, something needs to be said. Because apparently a whole lot of people (who should really know better) have totally and utterly forgotten the way our system of justice is designed to operate.

An independent Department of Justice

A whopping amount of the criticism over Eric Holder's decision is being misdirected towards President Obama. This makes no sense whatsoever. It smacks of "Obama Derangement Syndrome," the symptoms of which seem to be staking out a position radically opposed to whatever Obama says, does, breathes, or broadcasts psychically to "tuned-in" brain wavelengths only Republicans can pick up.

Because President Obama, rightfully, had nothing to do with this decision. The Attorney General of the United States, Eric Holder, is the one who should be being attacked and excoriated by critics of his decision. But, strangely, I have heard no loud cries for Holder to step down, or for Holder to be fired, or for Holder to be impeached. Almost all the energy in denouncing Holder's decision mentions him briefly, and then quickly elides over him in order to focus on the White House and Barack Obama.

But, again, President Obama -- entirely correctly -- had nothing to do with this decision. Unless you take it back to Holder's appointment, which Obama did indeed make. You can say, quite validly: "Obama never should have appointed Eric Holder, he's a dangerous lunatic who is obviously unqualified to make a decision on whether to issue a parking ticket, much less matters of national security." On the derangement meter, this would barely register. A little over the top on Holder, but still within factual reality (as a critic of Holder's might see it). In contrast, however, the statement: "Holder has said he didn't even consult with the president before making his decision, which he should have, and Obama should then have told him not to do it and to try K.S. Mohammed in a military tribunal" sends the Derange-O-Meter over into the red.

Because, for those of you who only remember the Bush years, this is not how the law works. The Department of Justice, which as Attorney General, Eric Holder leads, is supposed to be independent from political influence, and independent from the White House. It is the only Cabinet position to be so independent, as far as I know.

The "checks and balances" to the office are the Senate's confirmation of the Attorney General, and the president's ability to fire him or her. That's it. This is necessary, because sometimes the Justice Department has to investigate other parts of the Executive Branch, up to and including the president. The president does indeed have the power to stop such investigations by firing the A.G. (see: Richard Nixon and the "Saturday Night Massacre"), but any president who fires an A.G. unjustifiably, or for self-serving reasons, pays a huge political price for doing so (see: resignation of Richard Nixon). A further layer of separation was created after Nixon, in the form of Special or Independent Prosecutors, who are named by the Attorney General, and then given the power to investigate the president (or anyone else, for that matter) -- but the Attorney General is the one who makes this initial decision, not the president (see: Bill Clinton, Janet Reno, Ken Starr).

That's because the decisions about what to investigate, whom to prosecute, and how to prosecute them are solely the responsibility of the Attorney General. That's what an independent Department of Justice is all about. It's hard to remember, but before George W. Bush took office, this is the way it operated and indeed is supposed to operate now. The aberration of Dubya's term (and the resulting complete politicization of the Justice Department under a parade of hapless Attorneys General) was just that -- an anomaly to the way the system is supposed to work.

So anyone who doesn't agree with Eric Holder's decision to try K.S. Mohammed in civilian federal court, feel free to criticize him for making such a decision. It's your right to disagree with such decisions. Feel free, even, to call for Holder's ouster. But don't try to drag President Obama into it, because he has no rightful place in the discussion.

Holder did talk to the groups that he thought had some valid input (i.e., non-political input) in the process of making his decision. He talked to the Pentagon and the Department of Defense (who are holding the prisoners currently in Guantanamo Bay), he talked to the mayor and police officials in New York City about the mechanics of holding such a trail and the security risks, and I'm sure Holder talked to quite a few other folks to get the details and information he needed to make an informed decision. But he did not talk to President Obama. Because he is not required to. A large part of the criticism currently being leveled is how Holder and Obama should have talked about how the decision would have played politically, either at home or in the rest of the world. But if the two had actually discussed this, it may well have been illegal for them to have done so. In other words, not only is Holder not required to have such a discussion, he is also not supposed to have such discussions in the first place.

So please, critics of Holder's decision, dig deep into your memory and try to remember the way the American system of justice worked before George W. Bush retooled it as an arm of the political agenda of the White House. Because the way it worked before Bush is actually how it is supposed to work, and that is exactly the way it did indeed work in Holder's decision-making process.

The C.I.A. doesn't get a vote, either

This one is so silly that I can dispense with it quickly. Many critics of Holder, in addition to "he should have gotten Obama's OK" are also -- stunningly -- saying "he should have gotten the C.I.A. to sign off on it as well."

Um, no.

The Central Intelligence Agency has many duties. Having a veto power over the Attorney General of the United States is not one of them. Nor should any sane individual argue that it should become one of their duties, because it is so far out of bounds of the mission of the C.I.A. that it isn't even visible on the horizon, as seen from Langley. I'm not knocking the C.I.A. here, just stating what should be obvious to people who really, really should know better -- we don't want the C.I.A. deciding who gets prosecuted and who does not in this country.

Neither do the victims

Some of these criticisms have been leveled from family members of victims of the 9/11 attacks. But, hard-hearted as it may sound, the victims don't get a vote in this either. This is the whole point of having a system of justice in the first place. Victims deciding punishment is not justice -- it is vengeance. An impartial judge and an impartial twelve citizens will decide this case. The victims may be heard during the trial or the sentencing, but they simply do not get a say in how the case is brought, or where. As I said, it's not easy for some to realize, but this also is a cornerstone of the foundation on which American justice is built.

The inevitability trap

But all of this is not to say, however, that defenders of Holder's decision have been completely blameless in this debate. Because they've fallen into a trap. To defend criticisms such as: "the defendants might actually get off on some technicality," or other versions of: "they could go free," Holder's defenders (up to and including President Obama) have painted themselves into a corner. And it's a tough corner to get out of. From an article today on this painted-in corner:

Obama said those offended by the legal privileges given to [K.S.] Mohammed 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 [K.S.] 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."

Holder, in the same article, said: "Failure is not an option. These are cases that have to be won. I don't expect that we will have a contrary result."

On the one hand, Obama and other defenders of Holder's decision want to appear confident in the outcome. But on the other hand, they can't appear too confident, because that would broadcast to the world that what can be expected is a star chamber session -- where they might as well announce the guilty verdict before the trial even begins, and save everyone a lot of time and hassle.

This is a tough tightrope to walk. Ironically, in this situation, Holder is the one whose job it is to actually project such confidence in the trial's outcome. If this were a normal criminal case -- even a normal case that was highly political and had as high a profile -- it is the prosecuting attorney (the "D.A.," for instance) who is supposed to walk in front of the media's cameras and appear confident to the point of certainty that he or she is going to win the case and obtain a conviction. This is part of the psyching-out all attorneys (both prosecuting and defending) routinely perform in any high-profile case tried partly in front of the flashbulbs and the microphones. Holder's confidence is nothing more than par for the course, since one way to describe his job is as the head prosecuting attorney for the entire country.

But others defending Holder aren't on such solid grounds, which is why Obama was hedging his statements so much. If the President of the United States is saying he's 100 percent sure everyone will be found guilty, it smacks of the Old West and "hanging judges" and "hanging juries." If the outcome is so certain, then why go through the motions of a trail? Let's just take them all out back and hang them from their necks until dead.

This is kind of a specious argument from critics of Holder, as well. Because the course of action they are arguing for -- a military trial -- also requires the presumption of innocence and the possibility of an acquittal. Otherwise it wouldn't be seen as "justice" by anybody, even its defenders.

It's a hard thing to face, and perhaps an impossible one to admit in the face of political criticism, but every trial in all parts of the American justice system must have both the presumption of innocence and the possibility of acquittal. Otherwise it would not be justice, by any stretch of the imagination. As I said, this may be politically impossible for Holder's defenders to forcefully say right now, but it either is the truth, or this trial will be a star chamber session. You can't have it both ways.


The bare facts of the matter are that New York and the federal courts both have a near perfect record of conviction on the over 200 terrorism trials they've held. While this is in no way a guarantee of the outcome of the K.S. Mohammed trial, it certainly seems that the Department of Justice prosecutors, the judges, and the juries in New York are quite capable of rendering guilty verdicts in terrorism cases. Many of these cases involved "national security" issues, which were dealt with adequately without any wholesale release of national secrets to America's enemies. New York City says it is ready and willing to host the trial, and that they've got the security situation under control. Most people, when they first heard about the decision to hold the trial right next to the World Trade Center, thought it appropriate that the people who had seen the effects of the attack would be the ones sitting in judgment as jury.

To be honest, I still find the entire subject to be completely uncontroversial, and am amazed the debate even exists or has gone on this long. It's a relatively obvious choice for the Attorney General to have made. Nothing I've heard said against his decision has caused me to change my mind about it, either. The whole thing seems like nothing more than this week's stick which the Republicans have picked up in order to whack President Obama politically, in an effort to show him in the worst possible light at all times.

Here's a good test of the sincerity of the opposition (media talking heads, feel free to use this, with or without attribution): the next time someone is interviewed who says something like "but they could go FREE!" immediately ask them to wager on the outcome of the trial -- "I'll bet you $100 right here and now that they are all found guilty, if you'll bet that they'll be let off on some technicality." I bet very few of these critics would be willing to put their money where their mouths are. Because deep down, they know the criticisms they are bringing up are largely unfounded, and that they are instead merely interested in scoring some cheap political points.

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