The rally didn't make a lot of news, but Daphne Eviatar reported over the weekend on a small gathering of conservatives opposed to trying terrorists in civilian court. Some familiar faces were present:
Andrew McCarthy, a former federal prosecutor and National Review contributing editor, told the cheering crowd: “We’re back here, because he thinks it’s a crime, and we know it’s a war,” referring to Holder. “Sixteen years ago, when they declared war with us, we answered with subpoenas,” McCarthy said, referencing the 1993 World Trade Center bombing. “They attacked, and we indicted.”
“There are people here who after 9/11 were fighting terrorists, while the people who are running this government were at Guantanamo Bay representing terrorists,” he continued, apparently referring to lawyers currently in the administration who earlier worked to help Guantanamo detainees secure the right to challenge their detentions in court.
I've written about this before -- it's rather bizarre that some people don't get the concept of legal representation and why it's key to ensuring due process; it's particularly bizarre in the case of McCarthy, who happens to be a former assistant U.S. attorney. To people like McCarthy, being accused of being a terrorist makes you guilty, and what's the point in giving guilty people due process? Never mind that most of the nearly 800 people imprisoned at Guantanamo have been released without charge.
To say McCarthy needs a civics lesson would be underestimating the problem. In addition to being pro-torture, this wing of conservatism can now be described as opposed to fair trials. Indeed, his characterization of the lawyers who litigated the key cases that extended due process rights to detainees as some kind of fifth column would be laughable if the idea hadn't spread to Congress, with senators like Chuck Grassley demanding a "list" of those lawyers in the Justice Department who worked on such cases prior to joining the Obama administration. These lawyers were protecting something larger than the individuals they were representing -- they were protecting the rule of law. And the Supreme Court of the United States, no liberal institution in its current incarnation, agreed.
Indeed Neal Katyal, the current deputy solicitor general and a key figure in the Hamdan v. Rumsfeld case, co-authored an op-ed back in 2007 calling for a special national security court for suspected terrorists alongside Jack Goldsmith, the former head of the Bush-era Office of Legal Counsel. That puts him far to the right of the ACLU, and even where Obama was during the campaign. Sounds like a true radical, right?
If we're looking at the big picture, there's very little that's different about the Obama administration policy compared to the Bush policy. Both embrace a hybrid legal structure of military commissions and civilian trials based on the strength of the government's case rather than the nature of the crime. The Obama military commissions might be constitutional, unlike those of his predecessor. But fundamentally, there's little different here.
At the same time, I doubt the Bush administration would have tried Khalid Sheik Mohammed and the other alleged 9/11 conspirators in civilian court, but not because they believed KSM was a war criminal as opposed to a murderer. McCarthy let the real reason for his opposition to civilian trials for the alleged 9/11 plotters some weeks ago:
Now, [KSM is] going to get a full-blown trial — after combing through the discovery for a couple of years and after putting the Bush administration under the spotlight.
It all comes back to torture -- a policy that McCarthy supports but doesn't want to be scrutinized in court. This opposition to fair trials is actually rooted in the most petty of partisan grievances, the desire to keep one's ideological cohorts from looking bad. Democracy, due process, even the strategic benefits of a civilian trial are all forfeit when it comes to protecting the Bush administration from the merest flicker of accountability.
Meanwhile, in addition to his difficulty with grasping the concept of due process, McCarthy seems to have trouble with math (h/t Glenn Greenwald). CBS news reported that "several hundred people" attended the rally, McCarthy says "thousands." All we know is that it was surely less than the gajillion babillion zillion who attended the 9/12 march back in September.
-- A. Serwer
