Diatribes of Jay

This is a blog of essays on public policy. It shuns ideology and applies facts, logic and math to economic, social and political problems. It has a subject-matter index, a list of recent posts, and permalinks at the ends of posts. Comments are moderated and may take time to appear. Note: Profile updated 4/7/12

14 November 2009

Holder’s Decision


Sometimes our punditry’s fuzzy thinking is flabbergasting. Last night on the Lehrer News Hour it was on full display.

David Brooks and Mark Shields both decreed that Eric Holder made the wrong decision in setting the trial of Khalid Sheikh Mohammed and four other 9/11 defendants in civilian court in New York City. Mark Shields went further: he said the President made the wrong choice in leaving the decision to Holder as Attorney General.

Let’s start with the basics. On an interview earlier in the same program, Holder described 9/11 as “the crime of the century.” Brooks demurred, calling it an “act of war.”

Who is right depends upon timing. Maybe we are at war today, over eight years later. I have written so myself. But we are at war largely against illiterate armies of misguided Afghans, not the well-educated perpetrators of 9/11. If we are at war now in the AfPak region, it is because we botched a simple police action with the most outrageous inattention, stupidity and incompetence in our military history. We let bin Laden get away by shifting attention to Iraq and neglecting Afghanistan, as we had done so foolishly since the successful Anti-Soviet Jihad.

Our police action degenerated into war long after 9/11. Not even a semantic contortionist can call a limited military action by a nation of 307 million against a few hundred terrorists a “war” and get away with it.

Osama bin Laden tried to become that semantic contortionist. He declared “war” on us in February 1998, in an obscure statement purporting to be a fatwa. But even on its own terms, this statement fell several light years short of a “declaration of war” as the world had used the term up to that point in human history. Besides a few notables in our intelligence services, whose advice was ignored, no one here knew about it. If you had taken a poll among Americans on 9/12, you would have been lucky to find 0.1% who’d ever heard of bin Laden, Al Qaeda or their purported declaration of war.

In fact, it’s unclear whether Al Qaeda itself existed at that point in time, other than as a figment of bin Laden’s fertile imagination. The so-called 1998 “fatwa” didn’t mention Al Qaeda; it came out under the head of the “World Islamic Front.”

And anyway it was not even a real fatwa. A “fatwa” is a binding religious edict. Bin Laden was the rebel scion of a rich Saudi family with zero religious training and no Islamic congregation. He had no authority to issue any fatwa. At the time he issued it, the so-called “fatwa” was nothing more than a propaganda tool of an unknown, nascent, secret band of extremist Islamist rebels. If you’ll pardon the religiously mixed metaphor, it was a “Hail Mary” pass by a small band trying desperately to attract recruits.

The Hail Mary pass did not connect until after 9/11. The successful act of terrorism put Al Qaeda on the map and gave bin Laden a powerful recruiting tool among disgruntled Islamic extremists. And it did so precisely because it was the “crime of the century,” as Holder described it. Holder is right.

If we give every band of gangsters, criminals, extremists or rebels the power to declare “war” on us simply by saying so, we will be fighting a lot of “wars.” And by calling them “wars” we will be giving these groups far more publicity and power over us than we ought. At the time of 9/11, we were no more at war with bin Laden or Al Qaeda than we are now at “war” with the Michoacan drug cartel, against which Holder just quietly led an effective police action.

That cartel has killed many people in our own country. It has far more victims in Mexico than died in 9/11. Yet we fight it as we should, through police action and our Department of Justice. Even Mexico brought in the Federales not because there was a “war” but because Mexico’s police had become hopelessly corrupt.

But Shields’ and Brooks’ main error has less to do with the semantics of war than it has to do with a topic that both men ought to know intimately: the perennial tug-of-war between publicity and secrecy.

Ever since 9/11, we have run that tug-of-war exactly wrong. We have kept secret what we should have publicized, and we have publicized what we should keep secret.

As I have bemoaned at length in another post, we made state secrets out of our fallen heroes’ final returns home, while we publicized our strategy, troop counts and even troop postings. If we are indeed at war now, we are going about it in a very strange way. Our media serve our enemies in the same way that their own spies used to.

Now some of us want to make the opposite error in trying captured terrorists. Trying, convicting and executing people with obscure judges and in secret are not things that great democracies do. They’re what the Bolsheviks and Castro did and banana republics do. They’re what Khalid Sheikh Mohammed himself brags about having done: beheading defenseless journalist Daniel Pearl, without counsel, in some secret hideaway.

Even if we were at war, the model we should follow is Nuremberg. Now that was a trial. Multi-lingual, procedurally perfect, scrupulously fair, with voluminous documentary evidence, and entirely public from opening call to sentencing. Holder wants to make the 9/11 trials more like Nuremberg and less like Daniel Pearl’s secret execution. God bless him.

There are so many reasons to try Mohammed and his co-conspirators publicly, in civilian court, and in New York City that it’s difficult to count them all. We want the whole world—and all of us—to know that we are still Americans. We want to show that we can give men accused of doing us such grievous harm a scrupulously fair trial and honor the rule of law even when it’s hardest to do so. We want to open every step of the trial to worldwide, public scrutiny. And we want the world to know that even in this case—even in dealing with a man who brags of cruel and inhuman deeds—we will take into account our own harsh treatment of suspects and exclude coerced testimony.

We also want the world to know that Americans are not cowards. The great irony of our so-called “war on terror” is how our “patriotic” (and utterly safe) small towns quake in fear at the thought of harboring mere transferees from Guantánamo, even in maximum-security prisons. Meanwhile, New Yorkers have gone about their business, living largely and well, in the terrorists’ bull’s eye for the best part of a decade. Who is more courageous? Who is more patriotic?

If you took a poll of New Yorkers, I think you’d find overwhelming approval for Holder’s decision, as a New York Times editorial suggested today. In a city that still hasn’t rebuilt Ground Zero, it’s a sign of people’s courage, resilience, toughness, fairness and patriotism.

And if you really want a fair trial, consider the sophistication of New Yorkers, who grow up in a city filled with the nation’s best lawyers and judges and a long tradition of respect for law. If you want a hanging jury, go to Virginia or a small town in a red state.

Why the Justice Department, in civilian court? That one’s easy. For eight years “political operatives” tried to take over our Department of Justice. They were the closest thing we’ve ever had in this country to the Soviet Union’s political commissars. President Obama, who knows our Constitution better than any of his predecessors since Lincoln, is determined not to let that happen again, whatever the provocation. So he left the decision on the crime of our century in the hands of a trained and dedicated professional, Attorney General Holder.

The President made the right decision, and so did Holder. Both decisions put 9/11 in perspective. If we could have an open, fair and procedurally correct trial of Nazi war criminals after the world’s greatest war, we can try the remnants of this small band of terrorists in New York City, which already has tried and convicted several of their predecessors.

New Yorkers’ legal sophistication will provide a level of fairness that no other venue could provide. Trying these men in civilian court, in the ordinary course of business, will show the whole world how nothing extremists can do will budge our great democracy from the rule of law that began eight centuries ago on the fields of Runnymede. And when the trial is over and these men face justice, we can all be proud of how our nation and our leading city publicly showed the “resolve” that Brooks so covets but never seems to find. The best resolve we can show is staying true to ourselves and our traditions.

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