I think Daphne Eviatar is exactly right to point out that Eric Holder's comment that "failure is not an option" in the 9/11 trials sounds eerily similar to one made by Pentagon General Counsel William Haynes on the military commissions prosecutions years ago. Haynes' statement that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions," was used by civil liberties groups at the time to argue that the military commissions were reverse engineered to ensure convictions.
Of course, it's not just Holder making such statements. President Obama said yesterday in response to those criticizing him for not trying Khalid Sheik Mohammed and the other alleged 9/11 conspirators in military commissions that such people won't find it "offensive at all when he's convicted and when the death penalty is applied to him." He's since backed off that statement.
By trying KSM in a civilian court, the Obama administration is circumventing the accusation that the venue is meant to ensure conviction. But what we have here, essentially, is a situation in which there is immense social and political pressure for any judge and jury to convict the accused -- pressure that is coming from the highest reaches of the administration. Now, I personally think KSM is guilty -- but that doesn't change the fact that when the president and attorney general speak so frankly in favor of a particular outcome of a criminal trial, it certainly calls into question whether or not the accused is getting a fair proceeding.
This trial isn't just for the U.S.: It's for the world. Al Qaeda's murderous ideology will be put on trial here, but anything less than real due process will indict the United States instead. Most Americans may be convinced of KSM's guilt, but the rest of the world -- particularly the hearts and minds the U.S. is trying to win, may not be. Which is why getting this right is so important.
-- A. Serwer
