Rules of the Game

He said he'd repeal Don't Ask, Don't Tell. He said he'd get us out of Iraq. He said he'd close Gitmo in a year. He said he'd change the way government operates. He said lots of things. If you were foolish enough to believe he'd do them, you're probably pretty disappointed these days.

But there was, if you believe in the rule of law, this one bright spot. Khalid Shaikh Mohammed and four others of the alleged 9-11 suspects held at Gitmo were going to get actual criminal trials. In actual federal courtrooms. In New York City. Of course, they'll be show trials with pre-ordained verdicts and the understanding that even if, somehow, the men are acquitted, they'll remain in custody forever. And for the folks where the evidence was weaker so an actual guilty verdict couldn't be guaranteed - well, they'd get a lesser system of justice. But it was something, something Shrub and his people wouldn't have let it happen.

See, Eric Holder, who made the announcement basically acknowledged that(1) we're perfectly capable of trying and convicting the bad guys in federal court, in regular trials, with the world watching, and (2) the more we refuse to assure these guys the rights enshrined in the Constitution, the more we actually encourage terrorists, because we're demonstrating that all our big talk of human rights and the rule of law is a sham.

More important (but frankly something nobody in government - and few outside of it - has ever grasped), holding regular criminal trials would demonstrate that these were just ordinary criminals. They weren't demi-gods. They weren't special. Ordinary American justice would serve admirably.

But things turned. The government announced that the trial would take three years. (Why, fergodssake?) And that lower Manhattan would be essentially sealed off all that time. (Why, fergodssake?) So New York rebelled.

And Holder said they'd move the trial.

And now AP reports that they're heading back toward military tribunals because you know, all that justice, that rule of law thing, it's just so messy. And anyway a trial's a trial.

"At the end of the day, wherever this case is tried, in whatever forum, what we have to ensure is that it's done as transparently as possible and with adherence to all the rules," Holder told The Washington Post in an interview published in Friday's editions. "If we do that, I'm not sure the location or even the forum is as important as what the world sees in that proceeding."

Well, sure.

But the military tribunals aren't transparent. And "all the rules" don't apply there.

Look, either we believe in the law or we dont. Either the Constitution means what it says or it doesn't. The fact that there are bad guys out there? As Greenfield observed a couple of months ago, trying Mohammed in a tribunal at Gitmo doesn't protect the mainland.

If the jihadists want to blow up a building to show us what they think of our system, our "freedoms", there are plenty around. We've got a country filled with big building built from Indiana limestone, and even if KSM is tried in a newly built courtroom on the Island of Cuba, they can still blow one up in Nebraska and capture our attention.

But if Mohammed and his cronies are too big for the American system of justice, the system enshrined in the Constitution, if the rule of law can't handle them, well. It might not be that the terrorists win.

But it's certain that the Americans lose.