- The Washington Times - Tuesday, November 24, 2009

OPINION/ANALYSIS:

Willing student or not, reality continues to give Barack Obama a late education in how the world — including the United States — actually works. The president and his attorney general are giving the rest of us an Ivy League tutorial in constitutional law.

When Attorney General Eric H. Holder Jr. awarded the Islamic radicals the opportunity to take their rhetorical carnival of murder and mayhem to New York City for the trial of Khalid Shaikh Mohammed, the self-proclaimed mastermind of the 9/11 assault on America, Mr. Holder insisted that he was only acting in the American judicial tradition of due process. A military tribunal is OK for a GI in Afghanistan but not for a criminal the GI captures there. His prescription is actually more in the tradition of “Rules for Radicals,” the manual of civic disorder and troublemaking written by Saul Alinsky, Mr. Obama’s revered mentor in all the things not in the province of the Rev. Jeremiah Wright or Bill Ayers. The president and the attorney general have had interesting instructors.

Neither the president nor the attorney general were quite prepared for the overwhelming, bipartisan, transracial outrage over their remarkable doctrine of “due process.” Mr. Obama, questioned by reporters in Asia, insisted that the noose was ready for Khalid Shaikh Mohammed (or KSM in the helpful shorthand applied to unpronounceable names). The legal niceties were necessary, but the wait for the hangman — or the needler, or electrician or whomever — would make the anticipation all the merrier.

The president said anyone offended by the unprecedented legal privileges afforded KSM in a civilian trial, instead of submission to the usual military tribunal for criminals captured on the battlefield, “won’t find it offensive at all when he’s convicted and when the death penalty is applied to him.”

The attorney general, sharply questioned by several senators at a hearing by the Senate Judiciary Committee, said, with more than a hint of prosecutorial smugness, that “failure is not an option.” The 72 virgins waiting for KSM in Islamic paradise might as well start filling their lamps with oil in anticipation of their bridegroom. Sen. Herb Kohl of Wisconsin, a Democrat, was nevertheless not impressed. “Well,” he said, “that’s an interesting point of view.” Sen. Chuck Grassley of Iowa, a Republican, agreed. “I don’t know how you could say failure is not an option. I’m a farmer, not a lawyer, but it seems to me ludicrous.”

It’s not clear whether this is constitutional law as taught at Harvard Law (Barack Obama, Class of ‘91) or Columbia Law (Eric H. Holder, Class of ‘71), but it sounds a lot like law once taught in the court of the infamous Judge Roy Bean, “the law west of the Pecos.” Judge Bean held court in his saloon and, like Messrs Obama and Holder, made up his precedents as he needed them. Guaranteeing death for KSM, as much as the architect of 9/11 deserves it, sounds a lot like the Old West idea of frontier justice, as typically applied to a murderer or horse thief: “We’re going to give you a fair trial and then we’re going to hang your ornery hide.” The judge usually put the carpenter at work on the gallows as part of the proceedings. Mr. Obama later insisted that he had not prejudged the outcome of the trial when he prejudged the outcome.

Mr. Obama, constitutional law professor or not, and his administration of eager amateurs continue to demonstrate that they just don’t understand the America that put them in office. Mr. Grassley’s remark, that he’s just a farmer but that the attorney general’s guarantee of justice rigged sounds “ludicrous,” shows just how out of touch the attorney general is with the traditions of due process. Mr. Holder’s assurance that even if acquitted by a civilian jury KSM would never be “released into our country” betrays his silly assurance that “failure is not an option.” (Maybe KSM should worry that the ultimate sentence will be “shot while trying to escape.”)

Mr. Holder told the senators that he has “every confidence that the nation and the world will see [Khalid Shaikh Mohammed] for the coward he is.” This, alas, is not much reassurance coming from the attorney general, who infamously decreed that “Americans are cowards” for not talking more about “race.”

The president and his chief lawyer seem confused. They prescribe advantages for KSM, clothing him in the constitutional rights of citizens, but holding a verdict worthy of Judge Roy Bean’s court in reserve if necessary. Dithering is contagious.

• Wesley Pruden is editor emeritus of The Washington Times.

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