The Test

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Eric_Holder_official_portrait.jpgBy deciding to try an admitted terrorist in federal court, Eric Holder is putting American democracy -- and us -- to the test.  

Democracy -- the kind people know in too many other places -- simply means letting the people go to the polls to choose their leaders. But the United States is not just "a democracy"; it's a liberal democracy (that is, one that specifically protects people from government, rather than the other way around) and a constitutional democracy (one in which the precepts and laws are clearly spelled out and binding on everybody from the President to the trash collector).

Our American form of democracy is not about policy but about process: it's about how we make our decisions, under what rules, guided by what principles, committed to what values. The Attorney General has now decided to see whether or not we really believe those words we so casually mouth when we salute the American flag, recite the pledge of allegiance, sing the Star Spangled Banner. We will test whether pinning a flag to a lapel is a paean to American principles or merely to base chauvinism.   

Here's the thing: we hold ourselves out to be a nation fully committed to the rule of law. That is no accident. America's founders were familiar with the power of arbitrary rule. They knew first-hand what it was like to have rulers toss opponents into jail and hold them there forever with no opportunity to defend themselves or to even know what it was they were being accused of. They determined that in America, unlike what Donald Rumsfeld later called "old Europe", people would at least be given an opportunity to try to defend themselves. Perhaps they would then end up in a cell for life or at the end of a rope, but the goal was to ensure that they were guilty before punishment was imposed.

This old-fashioned idea -- the right to defend oneself, no matter how heinous the crimes one is suspected of committing -- is at the root of some of the most important principles guiding American life.  Consider the freedom of the press. In colonial America, it was a crime to bad-mouth a colony's monarch-appointed governor. When New York publisher John Peter Zenger was taken to court for doing just that, a jury decided that guilty or not (he was) no journalist was going to get tossed into the clink for speaking ill of a government official. Want to know why a member of Congress cannot be punished for something he or she says on the House or Senate floor, or why they can't be arrested (except for treason, felony, or breach of peace) while en route to their official duties? Because rulers in the past knew how to get pesky opponents out of the way. So our Founders established a whole set of procedures to ensure that law, not arbitrary rule, would become the American way. The rules we live by today were put in place by a people who knew that the risk of following rules was ultimately less than the risk of capricious command.

Fast forward to the case of Khalid Sheik Mohammed, the man who claims credit for the attacks on September 11, 2001. Despite the Bush Administration's apparent comfort level with holding terrorism suspects forever without charges, the Constitution does not permit such an outcome. Except in the cases of invasion or civil war, the federal government is specifically prohibited from suspending the right of habeas corpus, the most important of all individual rights and the greatest protection against arbitrary government rule. At some point, therefore, Mr. Mastermind was going to face trial. The question was where and under what circumstances. Because military commissions do not afford the level of in-court procedures available in government courtrooms, and because Mohammed, like Timothy McVeigh and Terry Nichols attacked a civilian, rather than a military, target, the constitutionally proper venue for his trial was a federal courtroom.

This raised the question not of constitutional propriety but about such ancillary matters as whether he could be held in an American city, American cells, and American courts without a risk of escape. Whether an American judge could be counted on not to inject his or her own anti-American bias into the proceedings.  Whether or not the nature of American trials would allow Mohammed a stage upon which to perform. Big questions, and fair.

So high are the stakes that one noted commentator, Mark Shields, who is thoughtful and well respected, believed the decision should have been made by the President, not his underling at the Justice Department. But in fact the opposite is true: Mr. Obama is the chief executive but even though Eric Holder was appointed by Obama, he is not the President's Attorney General, but America's (a distinction the hapless Alberto Gonzales failed to understand). In fact, the selection of Bob Bauer to replace Gregory Craig as the chief White House counsel has been criticized, properly, because Bauer is a Democratic (read, political) insider and the last thing we need in the office of legal counsel down the hall from the President is another John Yoo, bending law to suit presidential preferences. Eric Holder knows that this is not a political call, it is a legal and constitutional call, and there, at least until the Supreme Court steps in, the buck stops with him.

As to the questions raised: both mass murders and leaders of vast, heavily-armed criminal enterprises have been tried and convicted in American courts. Our cells hold vicious and charismatic and wily men. Our courts have not been founding wanting. Yet many are fearful. Were the Israelis afraid to put Adolf Eichmann -- responsible for far more deaths than Mohammed -- on trial in Jerusalem? America itself was not afraid to put Ramzi Yousef and other terrorists who carried out the 1993 World Trade Center bombing on trial in New York (they were convicted).

Perhaps the worst fears of some will be realized; perhaps the trial of Khalid Sheik Mohammed will be disrupted or disruptive; perhaps he will be set free. The chances are slim indeed, but if one imagines worst-case scenarios, one must still ask whether that "worst case" is worse than turning our backs on our system on laws and the process guarantees of a free society. On that one, count me with Eric Holder.



(Photo: Official Portrait/U.S. Department of Justice)
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Mickey Edwards spent 16 years in Congress and 16 years teaching at Harvard and Princeton. He is a director of The Constitution Project and wrote Reclaiming Conservatism. More

Mickey Edwards was a member of Congress for 16 years and a chairman of the House Republican leadership's policy committee. After leaving Congress, he taught at Harvard for 11 years, where he was voted the Kennedy School's most outstanding teacher, and at Princeton for five years. He currently runs a political leadership program for elected officials as Vice President of the Aspen Institute and teaches defense policy and foreign policy at George Washington University. He has been a weekly columnist for The L.A. Times and The Chicago Tribune and is a weekly commentator on National Public Radio. Edwards served for five years as national chairman of the American Conservative Union and the annual Conservative Political Action Conference. He was one of three founding trustees of the Heritage Foundation. In 1980, he directed more than a dozen joint House-Senate policy advisory task forces for Ronald Reagan's presidential campaign. He is a director of The Constitution Project and has chaired task forces for the Council on Foreign Relations and the Brookings Institution. He served on the American Bar Association task force that condemned President George W. Bush, and his most recent book, Reclaiming Conservatism, was published in 2008.

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