Obama, Holder, Cohen: the Mistakes We Made


President Barack Obama and Attorney General Eric Holder have no one but themselves to blame for the mess that's become of the Khalid Sheikh Mohammed (KSM) trial. They waited too long between the November announcement that he would be tried in federal civilian court in Lower Manhattan and any concrete action taken toward that end. The continuing and still-unexplained delay--no indictment, no initial hearing, no nothing in public--precluded veteran judges and prosecutors from the opportunity to reassure the nation that a KSM proceeding near Ground Zero would not in fact be a zoo. And it allowed time for the trial's detractors to mobilize the agents of fear and loathing. The result is chaos. And inaction. And an apparent lack of will. In short, an example of all of the larger criticisms the Obama White House has received over the past few months.

Even if you assume that reasonable people may disagree over the efficacy of a federal trial for Mohammed, there is no excuse for the manner in which the Obama administration sought to achieve that goal. To announce a trial in Manhattan without having an iron-clad assurance of support from the mayor? To announce without a quick indictment to follow? To announce and then sit back and let the misinformation and disinformation fly for months without retort? Please. If these guys are going to lose on the merits of their plans, fine. But losing because of bad tactics just isn't good enough. Especially with so much on the line.

Following the announcement of his looming federal case, KSM should have been immediately indicted and brought to Manhattan for an initial hearing. Security should have been massive. The world should have been given an indirect (through reporters) glimpse at the reality of the story and not the legend of it. Mohammed is a man, not a monster. He's not super-human. He looks like aging porn star Ron Jeremy for Christsakes! Had New Yorkers quickly been told to nut-up by their leaders; had they been shown proof that this so-called "face of terror" looked like any other defendant in the dock, the Administration might have achieved its goal.    

* * *

And, speaking of mistakes, I would like to identify one of mine. Or maybe it wasn't. I don't know. When Justice Samuel A. Alito, Jr appeared to mouth the words "That's not right" during President Obama's State of the Union speech, I never once thought that the Justice was referring to anything other than the President's dicey description of the result of the Citizens United campaign finance case. It never occured to me that the Justice could have been saying "that's not right" in reaction to the President's mere mention of the Court or its controversial ruling.

This helps explain why I was so loathe to consider the indirect exchange anything more than a perfectly legitimate exercise of "free speech" within the confines of the House chamber. I still believe that to be the case. But I find it fascinating now to realize that so many people assumed Justice Alito's remarks were more broadly aimed than they were. Perhaps that helps explain why so many commentators and analysts lost their minds over the incident. Whatever the case, I should not have assumed so much; should have recognized the possibility of different interpretations from the outset and didn't. I was listening to the story but not really hearing what it had to say.   

So here's an example of how legal and/or political analysis can be botched, or misdirected, or simply incomplete. Would I have said or written anything different had I more quickly contemplated that "other" meaning in Justice Alito's words? Probably not. Even if he were attacking the right of the President to comment about the Court, I would have found the incident banal and unworthy of the froth it mixed up. But that doesn't excuse me from missing the boat the first time around.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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