The Obama administration has recently decided to try Khalid Sheikh Mohammed in civilian courts instead of military tribunals. Despite careful efforts by Congress to ensure that military tribunals offered sufficient legal protections to enemy combatants, the Obama administration has decided that military tribunals are not appropriate venues for SOME of the enemy combatants currently being held in Guantanamo.
Attorney General Eric Holder was recently questioned on capital hill about the Obama Administration’s decision to try Khalid Sheikh Mohammed in a civilian court. Here is a short shippet of his remarks:
Here is a brief transcript of the relevant portion:
Graham: Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?
Holder: [pregnant pause] I don’t know… I ‘d have to look at that…
Graham: We’re making history here Mr. Attorney General… I’ll answer it for you and the answer is no… I’m telling you right now, We’re making history and we’re making BAD history… And let me tell you why. If Bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?
Holder: He would certainly be brought to justice, Absolutely.
Graham: Where would you try him?
Holder. Well, We’d go through our protocol and we would make a determination about where he’d should appropriately be tried.
Graham: Why would you take him someplace different than KSM?
Holder: Well, that might be the case… I don’t know. I’d have to look at all of the evidence.
Graham: Does it matter if you use the law enforcement theory or the enemy combatment theory in terms of how the case would be handled?
Holder: Well, Bin Laden is an intereting case in that he has already been indited.
Graham: When does custodial interrogation begin in his case?
Holder: Well, that all depends.
Now, I think it important to point two things out about the interview. First, Holder doesn’t have a clue where Osama Bin Laden would be tried. Now, one would think that if the Obama Justice Department has put together a series of “protocols” (as Holder claims), that these protocols would be clear as to what the procedure would be for our most sought-after enemy combatant, Osama Bin Laden. The fact that Holder doesn’t have a clue evidences to me that these “protocols” are either very poorly formulated or completely arbitrary.
The second thing I notice is that when asked where Obama would be tried, Holder responds that he would “have to look at all of the evidence”. Now, to the layman, this may seem like a reasonable answer. But to someone with legal training, I find this answer appalling. What Holder is basically saying is that the decision whether or not to try a person in federal court (where there are greater legal protections available) or a military tribunal (where fewer legal protections are available), is not dependent on what the LAW says… but on the strength of the Justice Department’s evidence. This is all but a candid admission that the Obama Administration decides where to try an enemy combatant based on the outcome it wants to reach in any particular combatant’s case.
If the case isn’t strong enough to win in federal court, then Holder’s “protocols” will ensure that those combatants who the Obama Administration thinks are actually guilty will find their way into a military tribunal. If, on the other hand the case IS strong enough to win in federal court, Obama can safely bring a civilian case without worrying about political fallout. In other words, Holder’s “protocols” are nothing more than political decision trees — arbitrarily giving certain combatants different levels of legal protection depending on the political cost Obama may suffer should a terrorist be let off the hook. This has the effect of giving the Obama Administration a judicial role… and the ability to affect the outcome of any given case based on its own determination of guilt.
If this is considered “justice”… well… welcome to Barack Obama’s America.