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A Risky Proposition for Democrats

By William Kristol
Weekly Standard
November 13, 2009

This AP story explains how a federal civilian trial for Khalid Sheikh Mohammed and his four associates poses legal and political risks for Barack Obama:

“Hauling the professed 9/11 mastermind and four alleged henchmen to a New York courthouse is a risky proposition for President Barack Obama. The move will bar evidence obtained under duress and complicate a case where anything short of slamdunk convictions will empower the president's critics.... The case is likely to force the civilian federal court to confront a host of difficult issues, including rough treatment of detainees, sensitive intelligence gathering and the potential spectacle of defiant terrorists disrupting proceedings....

“[Attorney General Eric] Holder insisted the case is on firm legal footing, but he acknowledged the political ground may be more shaky when it comes to bringing feared al-Qaida terrorists to U.S. soil. ‘To the extent that there are political consequences, I'll just have to take my lumps,"’he said. But any political consequences will reach beyond Holder to his boss, Obama.”

But, the AP fails to note, the political consequences will also extend to 54 Senate Democrats who voted recently against legislation to bar such civil trials--and to Democrats in the House who will be put on the spot as well. Congress could insist on military tribunals, and indeed in the past it has provided for such tribunals. I imagine Republicans on the Hill will try to move to overrule Holder, with legislation in the Senate, and with legislation and perhaps a discharge petition in the House. Holder can take his lumps for his reckless ideological decision if he wishes. Will congressional Democrats follow him off the cliff?

Senate Judiciary Committee chairman Patrick Leahy, D-Vt., is willing to. He’s quoted by AP as saying that "by trying them in our federal courts, we demonstrate to the world that the most powerful nation on earth also trusts its judicial system—a system respected around the world.” Do non-Vermont and non-left-wing Democrats really think we need what is likely to be a disgusting and dangerous spectacle in order to demonstrate something “to the world?”

I suspect some Democrats might find more to agree with in the comments of President Bush's last attorney general, Michael Mukasey, a former New York federal judge who presided over the blind Sheikh case. Mukasey objects that federal courts are not well suited to this task, and that trial in open court "creates a cornucopia of intelligence for those still at large and a circus for those being tried.”

The AP story claims that “family members of Sept. 11 victims were also divided.” I don’t believe that. A few family members could be found today to say they didn’t care about the venue as long as justice is done. That’s certainly understandable. But when it becomes clear how much of a circus the administration may well be creating in the name of trying the killers of their loved ones, in order to make the world happy, I think very few family members will remain who can be provided to reporters to give cover to the administration.

President Obama and Attorney General Holder have embarked on a path that’s perilous for their party. We’ll see how many congressional Democrats choose to follow them.

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