The New Leviathan by Roger Kimball

Author:Roger Kimball
Language: eng
Format: epub
Publisher: Encounter Books
Published: 2012-08-06T16:00:00+00:00

THE RECKONING

The most reprehensible undermining of our war footing, however, is the stunning transfer of KSM & Co. to federal court in New York.

Legally, the move makes no sense. The five jihadists were prepared to end the case by pleading guilty in the military commission a year ago. The transfer is proceeding despite the fact that the commission system is being maintained – indeed, Holder announced that the bombers of the U.S.S. Cole (who killed 17 members of the U.S. Navy) will be tried by commission, notwithstanding that a civilian indictment has been pending against them for years. By capriciously placing the worst war criminals in the civilian system, Holder gives the lesser jihadists consigned to military justice a powerful claim that they’ve been denied fundamental fairness. Worse, he makes a mockery of humanitarian law, which has strived for decades to civilize warfare. Wittingly or not, Holder’s perverse message is: second-class justice for attacking military assets, gold-plated justice for mass-murdering civilians.

A civilian trial for KSM & Co. makes perfect sense only if it’s seen as a political maneuver. The impatient Obama left has been champing at the bit for torture and war-crimes prosecutions against government officials who formulated and carried out Bush-era counterterrorism policies, particularly interrogation. This has created a political quandary for Obama. Though the war in Iraq became unpopular, Americans strongly approve of the Bush counterterrorism measures. Hence the resonance of former Vice President Dick Cheney’s withering critiques of Obama’s performance. The specter of investigations against Bush officials while terrorists are coddled appeals to Obama’s base but galls most Americans. The president is thus walking a fine line: vaguely telling the public he prefers “to look forward, not back” but keeping the door open for prosecutions against any Bush official “shown to have violated the law” – something that, of course, cannot be “shown” absent the investigations the administration is saying it doesn’t wish to conduct ... even as it conducts them.

Concurrently, because it is more palatable politically to publish the nation’s secrets than to embrace the Third World practice of persecuting the ruling party’s political adversaries, the Justice Department has pushed for disclosure of classified information. This increases the likelihood that the left will get its reckoning from some foreign tribunal – Holder in fact told the German press in April that he was open to cooperation with European investigations of Bush “war crimes.” Resuscitating the case of KSM & Co. in a civilian setting perfectly fits this template. In civilian court, defendants have an unqualified right to represent themselves – they don’t have to accept a military defense lawyer with a security clearance to screen them from top-secret intelligence. It is Defense 101 that when it’s obvious that the accused is guilty and that the government’s investigative methods are controversial, the accused shoots for jury nullification by putting the government on trial. A civilian KSM case will be an intelligence banquet for the left: new disclosures about coercive interrogations, “black site” prisons, renditions, warrantless surveillance, etc. – along with the identification of witnesses who can provide sworn testimony.

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