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With Holder at the helm, detainee policy is a disaster

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By Michael Gerson
Friday, November 19, 2010

The closing of the Guantanamo Bay prison and civilian trials for terrorists were more than policy changes proposed by Barack Obama as a presidential candidate. They were presented as a return to constitutional government - a dividing line from an uncivilized past.

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The indefinite detention of terrorists, according to Obama, had "destroyed our credibility when it comes to the rule of law all around the world, and given a huge boost to terrorist recruitment." Testifying last year before Congress, Attorney General Eric Holder not only defended a New York trial for lead Sept. 11 plotter Khalid Sheik Mohammed, he lectured, he taunted, he preened. Unlike others, he was not "scared" of what Mohammed would say at trial. Failure was "not an option." This case, he told a reporter, would be "the defining event of my time as attorney general."

Which it certainly has been. Under Holder's influence, American detainee policy is a botched, hypocritical, politicized mess.

The case of embassy bomber Ahmed Ghailani - the only Guantanamo Bay detainee the Obama administration has brought to trial in the United States - was intended to increase public faith in civilian prosecutions. But a terrorist hugging his lawyers in victory can't be considered a confidence builder. Days before the Ghailani verdict, the White House admitted that Mohammed, because of massive, public resistance, would not be seeing the inside of a Manhattan courtroom anytime soon. "Gitmo," one official told The Washington Post, "is going to remain open for the foreseeable future."

Where do these developments leave Holder, for whom failure is not only an option but a habit? A recent profile by Wil Hylton in GQ magazine attempts to put his tenure in the best possible light - the lonely, naive man of principle undone by politics. But the portrait is unintentionally devastating. Holder clearly views the war on terrorism as a distraction. "The biggest surprise I've had in this job," he told Hylton, "is how much time the national security issues take."

He was oblivious to predictable reactions in the Mohammed case. "The political furor that erupted next," says the article, "took Holder completely by surprise." The attorney general has been stripped of authority over the trial venue by the White House. And Holder's unshakable legal principles, it turns out, were more like poses.

"In case after case, he seems to have reconciled himself to policies that he would have once condemned," concludes Hylton, a true progressive believer. "As we went back and forth, I began to realize that it was impossible to know how much of Holder's argument he really believed, and how much he was merely willing to say."

Holder clearly believes that his virtue was violated by politics. But there is a better explanation. President Obama's undeniable continuity in conducting the war on terrorism - the use of indefinite detention, Guantanamo Bay and targeted killing of terrorists - reflects the continuity of the threat. These measures did not result from some anti-constitutional ideology. They were difficult, conflicted but reasonable responses to an ongoing terrorist offensive - a war that is more than a metaphor.

Civilian courts were not designed for high-profile enemy combatants such as Mohammed, who would use a New York trial to embrace martyrdom and encourage violence. The use of military tribunals at Guantanamo Bay is fully constitutional, approved by Congress and consistent with wartime precedent.

Obama seems to be realizing - gradually, reluctantly - that applying the rules of war in the midst of a war does not destroy the credibility of the rule of law or encourage terrorist recruitment. But his public inability to admit this shift seems to be leading to the worst of possible outcomes.

In all likelihood, Mohammed won't be tried in a civilian court. But Obama's progressive allies would revolt against a military tribunal for the killer of Wall Street Journal correspondent Daniel Pearl and the mastermind of Sept. 11. So Mohammed is left in legal limbo. This, in its own way, does seem at odds with the rule of law - a prisoner condemned to detention without trial because a president cannot admit he was wrong.

How does Obama back down and accept a tribunal? He could begin by appointing an attorney general who understands the requirements of national security. Some on the left believe Holder should resign out of principle. Some on the right believe he should leave because he is out of his depth. Such bipartisanship should not go to waste.

michaelgerson@washpost.com


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