Per the last post, here’s how “carefully” Holder consulted the law before pulling the trigger on KSM. Not only does Graham have to tell him that there’s no precedent for trying battlefield detainees in civilian court, but Holder’s emphasis on how we don’t need a confession to convict Bin Laden completely misses the larger point Graham’s trying to make. The real worry in a district-court trial isn’t what’ll happen to archterrorists like Osama or KSM, whose perpetual detention is assured; the worry is that those trials will establish precedents that’ll be exploited by lesser jihadis at their own trials later on. KSM won’t be released because the political consequences to the administration are too dire, but what about some other terrorist who’s less well known to the public and whose guilt, while certain to the CIA, is less provable under normal evidentiary rules? A confession in a case like that might be critical — but what if he wasn’t Mirandized before he confessed? What then? That’s Graham’s point, and Holder seems to want nothing to do with it.
Another thing. He refers here to the DOJ’s “protocol” for deciding which terrorists get civilian trials and which get military tribunals. Did he happen to mention at any point today what that protocol might be, precisely? Graham seems to think it’s “civilian trials for terrorists who kill civilians, military trials for terrorists who kill soldiers,” which would, of course, be utterly perverse. There’s another possibility, though, and one which jibes with Holder’s dopey fixation on not needing a confession to convict Bin Laden. Maybe they’re simply looking at the pile of admissible evidence they have for each detainee and deciding that guys with big piles go to civilian court, where they’re likely to be convicted anyway and The One can crow about “due process,” while guys with smaller piles go to military court, since a civilian trial might well result in them getting off. If that’s what they’re doing — i.e. a two-track justice system designed purely to maximize the government’s odds at conviction while minimizing the political risk of acquittal — then, like Patterico says, KSM’s trial is even more of a show trial than we thought. Presumably, if Holder thought we did need confessions to convict him and/or Bin Laden, the plan to try them in Manhattan would be scuttled and they’d be off to a tribunal to make things easier on the prosecution. The decision on what “due process” is due, in other words, is based not on the nature of the underlying act — war perpetrated by a foreign enemy — but on the outcome The One wants to achieve, with Holder actually going so far today as to say, I kid you not, “Failure is not an option.” Isn’t failure always an option in a true due-process regime?