- The Washington Times - Tuesday, April 5, 2011

Attorney General Eric H. Holder Jr.’s 13-minute rant on abandoning plans for a civilian criminal trial for Sept. 11 attack mastermind Khalid Shaikh Mohammed (KSM) had the distinct tone of a sore loser. Mr. Holder’s failure to sell his vision of giving international terrorists the full constitutional rights enjoyed by U.S. citizens is a big win for our country.

Mr. Holder was clearly not happy about the fact that he has been ordered to drop his plans for a open-court trial in New York City for the al Qaeda uber-terrorist in favor of a military tribunal at Guantanamo Bay, Cuba. He explained that the government “simply cannot allow a trial to be delayed any longer, for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice.”

Mr. Holder blamed Congress for the delay - intruding on “a unique executive branch function” - but it is now more than two years into the Obama administration, and for most of that time the White House enjoyed friendly majorities in both houses. The real story is Mr. Holder‘s failure to rally interagency support for his position and Mr. Obama’s inability to lead even a sympathetic Congress. If this is indeed “a unique executive branch function,” then Mr. Obama is an astonishingly weak president for losing control of it.

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Mr. Holder’s most jaw-dropping statement was that the terror trials “should never have been about settling ideological arguments or scoring political points.” We wonder what administration he thinks he is serving. For as long as the detainee issue has existed, Mr. Obama has taken every opportunity to twist it to his political advantage. Mr. Holder has also beaten the political drums on detainees, even to the extent of harming his ability to achieve convictions. Mr. Holder was instrumental in releasing the so-called “torture memos” in April 2009 that detailed the enhanced interrogation techniques used on detainees during the George W. Bush administration. He also went out of his way to insist in official statements and in congressional testimony that these techniques were “torture.”

Mr. Holder must have mind-boggling faith in federal prosecutors to think that they can deliver a conviction on Mohammed when he was waterboarded 183 times in one month. They would be lucky if a judge didn’t release the Shaikh on a summary judgment and advise him to file a civil suit against the government.

The attorney general complained that “too many people - many of whom certainly know better - have expressed doubts about our time-honored and time-tested system of justice.” Political posturing aside, it may not be the system that people lack confidence in so much as Mr. Holder. In June 2009, when Ahmed Ghailani - a suspect in al Qaeda’s 1998 African Embassy bombings - entered his not guilty plea in federal court, Mr. Holder was certain his team would shine. “The Justice Department has a long history of securely detaining and successfully prosecuting terror suspects through the criminal justice system, and we will bring that experience to bear in seeking justice in this case.” In the end, however, his incompetent team was only able to bring conviction on one of 285 counts.

With a high-profile terrorist like Mohammed, is it really worth the risk to hand the case to Mr. Holder with the possibility that KSM could walk? From Mr. Obama’s perspective, with the 2012 election looming, the answer is clearly no.

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