WASHINGTON -- Eric Holder is a genuine American patriot. The U.S. attorney general believes the oft-recited pledges about justice and liberty; he has an abiding faith in the U.S. Constitution; he understands the premises of American exceptionalism.
He has said frequently that holding alleged 9/11 planner Khalid Sheikh Mohammed to account in a civilian trial in a federal courthouse in New York City, blocks away from the destroyed Twin Towers, would be an outstanding way to show the supremacy of American values. As he told The New Yorker last year: "Values matter in this fight. We need to give those who might follow these mad men a good sense of what America is, and what America can be. We are militarily strong, but we are morally stronger."
But Holder is apparently rare among the titans of official Washington. Few of them were willing to allow Mohammed the rights that we insist lesser nations ought to emulate.
So, in an embarrassing reversal, Holder announced last week that Mohammed will be tried by a military commission at Guantanamo Bay. The decision hardly came as a surprise; Republicans and Democrats had found fault with the plan for a civilian trial and made it impossible to carry out.
Still, it's hard to account for the level of cowardice that forced the Obama administration to renege on a high-profile promise. Men and women who ought to know better insisted that Mohammed was much too dangerous to try in a regular court; that his supporters might target his trial for a high-profile terror attack; and, not insignificantly, that he might not be convicted.
The complaints about the continuing threat represented by Mohammed remind me of fairy tales about monsters and other mythical creatures. The notion that he could easily summon up a sinister plot from his cell in Guantanamo -- or that his supporters can -- elevates him to the status of superhero.
Yes, there are continuing and multiple threats from jihadists intent on blowing up bridges, planes or shopping malls. The nation's security apparatus confronts those daily. But nothing about Mohammed suggests he is any more dangerous than Ahmed Khalfan Ghailani, another al-Qaida operative, who was convicted in a New York City federal courthouse last year without incident.
Oddly, the successful prosecution of Ghailani only heightened objections to a civilian trial for Mohammed. Ghailani was charged with more than 280 counts related to the 1998 bombings of U.S. embassies in east Africa, but he was convicted of only one charge.
That was enough to land him in prison for life, but not enough to satisfy the zealots who see jury trials -- where rules of evidence are strict and the prosecution is compelled to present a case beyond a reasonable doubt -- as a weakness of the criminal justice system. Those standards are among the rights that the U.S. Constitution, lately much-lauded by hyper-conservatives, was meant to guarantee, but its protections may be more honored, by those same hyper-conservatives, in their breach.
Mohammed will likely be convicted and sentenced to death by a military commission -- which, by the way, still has to operate by certain rules and procedures that represent the rule of law. Of course, he would likely have been convicted and sentenced to death in a civilian court, too. (In 2008, Mohammed reportedly told his jailers that he wanted to plead guilty.)
The considerable difference is that the military commission will be conducted in secret, without the scrutiny that accompanies headline-making civilian trials. There will be no daily accounts of the proceedings, no sketches of the prosecutors and defendant, no witnesses who are not parties to the proceedings.
And therein lies the problem. A closed-door trial has little credibility in those parts of the world where America needs to win hearts and minds. Its secrecy merely breeds the kind of crazy conspiracy theories that abound in parts of the Middle East. An open and transparent proceeding, by contrast, would put American values on display for the world to see.
It's too bad that we won't practice what we preach.
- Eric Holder
- Khalid Sheikh Mohammed
- the U.S. Constitution
- American exceptionalism