Khalid and the Kangaroo Court

(not when, but if )

There are some mornings when I read a news item and make it through a paragraph or two, and then a couple of lines leap off the page or the screen, bury themselves into my brain, and do not uproot until I write about them. An idea, a quotation, a quotidian leap of logic. Something that stands out from the sense or the reason or the order and demands to be set straight.

And then there are mornings like this one, when I read a news item and don’t even make it through a sentence, much less a paragraph, before those little burrs take hold. And then I keep reading, and the thoughts and the wonders and the outrages just keep coming, cascading one after the other, from all sides and in all sizes, until I can barely believe what I’m reading. Before long, it feels like a Twilight Zone episode, filtered through The Matrix, mashed-up on Meet the Press. And there I sit, alone at my kitchen table, hoping that Rod Serling or Laurence Fishburne or Tim Russert will show up, pour some black milk into a white cup, and tell me that I have, indeed, entered another dimension.

Like this one...

Republican senators confronted Attorney General Eric Holder yesterday over his decision to try the Sept. 11 terrorism suspects in civilian court.

Republican senators opposing a Democratic Attorney General makes sense, of course, but that last bit — the opposition to trying men accused of plotting to commit murder on American soil in an American court — portends trouble.

Where else should we try them? In The People’s Court? Or in a kangaroo court, perhaps?

President Barack Obama, meanwhile, expressed certainty that they will be found guilty and executed.

I had to read that one three times.

The first time I got to the end of the sentence, I had to go back to the beginning to make sure it said President Barack Obama, not President George W. Bush.

The second time I got to the end of the sentence, I went back to the beginning again, just to make sure that I hadn’t accidentally conflated two sentences, or that my mind wasn’t playing tricks on me, or that I hadn’t come down with some sort of political or ideological dyslexia.

By the third time I got to the end of the sentence, I was confident that I’d read it correctly. Even as I was trying in vain to wrap my head around the notion that the President of the United States, a scholar and professor of constitutional law who earlier this year — twice, in fact, thanks to Justice Stuttering John Roberts — had placed his hand upon a Bible and sworn to preserve, protect, and defend the Constitution of the United States, and by extension all the legal protections for which it provides the bedrock foundation, was declaring that people who had not yet gone to trial, who had not yet set one foot in a courtroom nor heard one word spoken either in their prosecution or in their defense, would surely be found guilty. And then executed. For crimes they have so far only been accused of committing.

I decided that President Obama must surely have been misrepresented, or at least unfortunately paraphrased, and so found the strength to carry on.

Mr. Holder did not go as far as Mr. Obama did in his testimony to the Senate Judiciary Committee, though the nation's top prosecutor said he was confident that justice would be delivered to Khalid Sheikh Mohammed and other accused plotters of the Sept. 11, 2001, terrorist attacks.

I would expect Mr. Holder, as the nation’s top prosecutor, to express confidence in the case and especially in the prospects of justice, no matter the outcome, being served to the accused plotters. Of course, I would also expect the President to respect the notions of a fair trial and of innocence until proven guilt. So bravo, on principle, to Mr. Holder.

"I think you've made a fundamental mistake here," Sen. Lindsey Graham, R-S.C., a military lawyer who has served active duty in Iraq and Afghanistan, told Mr. Holder. "You have taken a wartime model that will allow flexibility when it comes to intelligence gathering, and you have compromised this country's ability to deal with people at war with us, by interjecting into the system the possibility that they may be given the same constitutional rights as any American citizen," he said.

Now we have a United States Senator, also a military lawyer, complaining that men accused of a crime in the United States of America might actually be afforded the rights provided by the United States Constitution and all the laws that follow upon it. We also have the spectacle, by now all-too-familiar, of a Republican (so-called) defender of the constitution defending only the parts of it he likes, and applying them only to the people he likes. Which is, of course, just what our Founding Fathers intended.

(No, really. The penultimate draft of the Preamble actually read: ...secure the Blessings of Liberty to ourselves and our Posterity, as long as our Posterity is cool and agrees with our own Political positions, do ordain and establish...)

Also submerged in that cocktail of irony and hypocrisy is the notion, as capricious as it is untenable, that our Senators can declare war the same way our Mayor declares taxable privilege: at any time, and always to our own narrow advantage. It is a cheap rhetorical trick, turned to ill effect by charlatans and tin patriots who would have us believe that a war is little more than a conspiracy of attackers, and even less than a legal objection.
  
Mr. Holder said he foresaw no judicial obstacles to convicting the five terrorism suspects and putting them to death, though he acknowledged that prosecutors will have to persuade jurors. "I do not see any legal impediments to our seeking the death penalty," the attorney general said. "We will obviously have to convince a jury of 12 people that the death penalty is appropriate."

More points to Mr. Holder, whose steadfast grip on the principles of American jurisprudence were the only parts of this article preventing me from setting fire to my morning paper, and to my copy of the Constitution, and setting out for the Canadian border.

When the president was asked whether he understood why some people might take offense at the decision [to hold a federal trial for Khalid Sheikh Mohammed], which Mr. Holder announced last week, Mr. Obama told NBC News: "I don't think it will be offensive at all when he's convicted and when the death penalty is applied to him."

So much for the misrepresentation. Or the unfortunate paraphrase. And so much for the strength to carry on.

Because here, in a direct quotation, is a President of the United States not named George W. Bush, sounding an awful lot like a President named George W. Bush, declaring conviction and execution for a trial that has not yet begun in untoward whens, not uncertain ifs.

Mr. Obama hasn't shown this much confidence in the uncompleted, nor this much concern for an empty court, since he filled out his NCAA Tournament bracket. Tyler Hansbrough and the rest of his Tar Heel co-conspirators had little problem with their execution last March, but at least they were expected to earn it.

Mr. Obama, a former law professor, appeared to realize immediately that such a statement risks harming the constitutional presumption of innocence and the right to a fair trial. "What I said was people will not be offended if that's the outcome," he added. "I'm not prejudging" the verdict.

Here again, I had to double-check, just to be sure that I was, in fact, reading about President Obama, and not about his immediate predecessor.

President Bush, you’ll recall, often seemed to forget that such things as audio and video recording devices, including the ones aimed perpetually at him, exist. And that, when properly applied, they can even be used to verify whether you actually said the things you claim to have said. Mr. Obama, who has made a chief, and chiefly wise, tenet of his presidency that it should run as far as possible away from the unfortunate legacy of his predecessor, would do well to look once more over his shoulder, or at least into the cameras ahead of him, and learn this valuable lesson.

Because what he said he said is not what he said.

I don’t think it will be offensive at all when he’s convicted and when the death penalty is applied to him

is not the same as, nor able to be mistaken for

People will not be offended if that’s the outcome.

Just as two wrongs do not make a right, two whens surely do not make an if. Either way — and so in both ways — President Obama is in the wrong. And should be reminded.

Just as he should be reminded that another of his immediate predecessor’s most constant and discordant failings was an inability to admit, and then a steadfast refusal to apologize for, any of the mistakes he made or said. If Mr. Obama misspoke in that first instance — and I, as well as Rod Serling, Laurence Fishburne, Tim Russert, and all the Founding Fathers now halfway to rolling over in their graves do fervently hope — he should have acknowledged it. And then made amends for it.

A busy, over-burdened President who misspoke on a core tenet of his country’s belief system is surely preferable to a prickly, under-critical President who can not admit his own mistake. And both are preferable to a President, or to a Senator, or to anyone else for whom whens are greater than ifs, guilt comes before innocence, and trials, even of (alleged, but likely) homicidal sociopaths, serve the cogs of political posturing before the wheels of criminal justice.