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.