Jim Geraghty transcribes an exchange this afternoon between Senator Charles Grassley (R-IA) and Attorney General Eric Holder on the administration’s commitment to the federal court system. Holder had previously insisted that the federal court system gave the government its best opportunity to convict Khalid Sheikh Mohammed, although he failed to explain how he reached that conclusion. When Grassley challenges Holder to explain how the administration would react to an acquittal or dismissal of the charges, Holder says it wouldn’t change anything:
Sen. Charles Grassley, R-Iowa: “I don’t think you can say that failure to convict is not an option, when we have juries in this country.”
Attorney General Eric Holder: I have thought about that possibility. Congress has passed legislation that would not allow the release of these individuals in this country. If there is not a successful conclusion to this trial, that would not mean that this person would be released into this country…
Grassley: My understanding is that if for some reason he’s not convicted, or a judge lets him off on a technicallity, he’ll be an enemy combatant, so you’re right back where you started.
Not only will we be right back where we started, it will expose the federal trial as nothing more than a show trial. Show trials are conducted by despots and dictators to give only a thin veneer of legality to political detentions and executions. If the state isn’t prepared to abide by the decision of the court, including dismissals and acquittals, then the use of the trial system is worse than useless. It demeans the federal system needed for Americans to seek unbiased justice.
Lest we forget that dismissals could be a big problem with a KSM trial, Andy McCarthy reminds us of the Moussaoui trial and its circus atmosphere:
More importantly, though, Senator Durbin and the attorney general fail to point out that the Moussaoui trial was a three-ring circus, that the district judge actually tried to dismiss the indictment, and that we don’t know what would have happened had Moussaoui not surprised everyone by pleading guilty. When the Court of Appeals reinstated the Moussaoui indictment, it also said it was sensitive to the trial judge’s concerns and would look very carefully to ensure that the government made available to Moussaoui all the information he needed to present his defense. What would have happened if Moussaoui had continued to press his demand for access to classified information and testimony from al-Qaeda captives like KSM? We don’t know.
If Moussaoui is their shining example of how well the civilian courts handle international terrorism cases during wartime, they’re in trouble.
In fact, Jon Kyl used Andy’s columns to rebut Holder during his testimony. McCarthy helped with the trial of the 1993 World Trade Center terrorist attack, exactly the kind of trial Holder wants to conduct again, but Holder dismisses Andy as a polemicist who just wants “fodder for the talk shows.” One might think that Holder would have more respect for a man with a lot more experience at handling the prosecution of terrorists than Holder himself has.
As James Joyner also concludes, it’s impossible to see Holder’s assertion that the US will detain KSM no matter what the court finds as anything other than an endorsement for “a show trial and a sham.”