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On Gerson's takedown of Attorney General Holder

I’d like to propose Marcus’s General Theory of Punditry: the intellectual force of a column tends to be in inverse relationship to the amount of invective. Today’s example -- and, yes, I’m sure it would be easy to apply this to some of my own -- is my normally mild-mannered colleague, Michael Gerson.

Gerson denounces Attorney General Eric Holder as “the most destructive member of Barack Obama’s cabinet.” Holder’s original sin, according to Gerson, was having a special counsel review allegations of criminal misconduct growing out of the Bush administration’s torture policies.

But what really set Gerson off was last week’s move to try Sept. 11 mastermind Khalid Sheik Mohammed in federal court. Any ensuing trial, Gerson says, will be conducted in “a circus atmosphere,” with “America subjected to the airing of intelligence sources and methods” and Mohammed awarded “the full O.J. Simpson treatment.”

Holder himself is depicted as an Atticus Finch wannabe, “disapassionately defending the rule of law against the howling mob,” when he is, in fact, another Ramsey Clark, the left-wing former attorney general. And then, the gut punch: Not only does Holder deny that America is at war with terrorists, “he seems determined to undermine those who do.” His approach, says Gerson, boils down to: “Let justice be done, though the heavens, and buildings, fall.”

Those are some serious -- I’d even go so far as to say scurrilous -- allegations, so they bear examining.

First, on the merits of the decision to try Mohammed in federal court rather than through a military tribunal. Note to Mike: They have the presumption of innocence in tribunals, too. Unlike O.J.’s, federal trials, for better or worse, aren’t televised, and federal judges are no Lance Ito. Any experienced federal judge can prevent Mohammed from using the trial as a soapbox, and, as Steven Simon points out in the New York Times, the better bet is that the propaganda bonanza would be to our advantage, not the jihadists'.

Federal law contains sufficient safeguards to protect sources and methods, and you can be sure that the Justice Department made a careful assessment that it could obtain a conviction without harmful disclosure. The risk of acquittal is negligible, although I think that word may be overstating things. More important, even if Mohammed were somehow acquitted, it’s not as if he would saunter off to brunch in Tribeca. He’d no doubt be indicted and held on other charges, or preventively detained. If “the ACLU is effectively being put in charge of the war on terrorism,” as Gerson suggests, that’s news to them. Since the inception of the Obama administration, they’ve been bemoaning decision after decision in the national security arena.

Gerson complains of the “incoherence” of Holder’s decision to assign some cases to military tribunals, others to federal court; and I think it’s fair to say that the distinctions between these two classes of case have not been well explained. But when the alleged crime has a clear nexus to American soil rather than an overseas battlefield, when it can safely be tried in the uncontested fairness of a federal courtroom, what is the cost of choosing that route? It’s a proven method, with a long string of convictions. As to risk to New Yorkers, like those of us here in Washington, they know their city is a target, trial or not.

Second, on Gerson’s mind-reading derogation of Holder. To suggest that the attorney general makes difficult legal decisions on the basis of ideological predispositions is not only a slur; it ignores the many times Holder’s decisions (using military commissions, invoking the state secrets privilege, denying habeas corpus relief to detainees in Afghanistan, to name just a few) have discomfited liberal allies. There is a distinction -- one Gerson and company choose to ignore -- between treating terrorism as solely a law enforcement problem and using the techniques of law enforcement as one of many routes to combat and punish terrorism.

Reasonable attorneys general could differ about how to deal with Mohammed. But to suggest that this attorney general’s decision makes him heedless of the nation’s security or dismissive of the terrorist threat is beyond the pale.

By Ruth Marcus  | November 18, 2009; 9:17 AM ET
Categories:  Marcus  | Tags:  Ruth Marcus  
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What is really surprising, is that anyone felt the need to respond to Gerson's infantile idiocy at all.

Gerson is easily, the most pathetic of the Post's pundits. Yes, even worse than Krauthammer. His rantings are illogical and nonsensical on a regular basis.

Posted by: CardFan | November 18, 2009 10:27 AM | Report abuse

I've actually stopped reading Krauthammer and Gerson on line. I may read their columns from time to time in print, but I won't read them on line, where traffic to their pages can be tracked. I don't want to responsible for any increase in the traffic to their sites, which might potentially be mistaken for either agreeing with them or wanting WP to keep them.

Posted by: WK437 | November 18, 2009 10:36 AM | Report abuse

It's really as simple as this.

Legally speaking, KSM is, at best, an illegal enemy combatant. He is not entitled to the rights, protections, rules, and presumptions afforded to *American citizens* in a criminal trial conducted in civilian courts. This New York business is a mistake.

Illegal enemy combatants choose willingly to take up arms, wear no uniforms, fight under no flag, and hide among civilians. And terror is their weapon. THEY choose to fight outside the rules of warfare. THEY choose to willingly target civilians. As such, they are not even entitled to the rights afforded enemy prisoners of war under the Geneva Conventions.

Let's not kid ourselves here. The only proper approach to dealing with illegal enemy combatants, once all usable intelligence has been obtained and a court martial conducted, is execution by firing squad.

That we provide Gitmo detainees treatment consistent with, and sometimes in excess of, Geneva protections, is a sign of our humanity. Too bad its turning into a sign of weak resolve in dealing with the real problem.

Posted by: chambers14 | November 18, 2009 10:41 AM | Report abuse

Yup. There's a lot of Gerson - like vitriol swirling around out there. Politics? ... Nahhh! ... Couldn't be. I suppose, next, it'll be an "article" about how the Prez' can't walk and chew gum simultaneously. Maybe "one" about how He seems to be slouching on such "trivial" matters as war, a burglarized economy, a failed dog eat dog health care system, ... all pretty much signed, sealed and delivered by the GOP. ... Anyway, Mr. Holder is obviously a dedicated professional. What's not to like?

Posted by: deepthroat21 | November 18, 2009 10:47 AM | Report abuse

New York is not the right place to hold this trial. This is just plainly dumb and morally wrong.

Posted by: trumeau | November 18, 2009 11:05 AM | Report abuse

Nice try Ms. Marcus.

Eric Holder's political/ideological agenda is no secret.
His successful efforts to get Clinton to pardon the FALN terrorists and the fact that he was a senior partner with Covington & Burling just before Obama hired him are just two glaring examples.

Covington & Burling (surprise!) have or still do represent Gitmo detainees.

Posted by: spamsux1 | November 18, 2009 11:06 AM | Report abuse

Marcus go drink some are one of the most ignorant journalists out there.... you belong with the MSNBC/NYTimes Obama lovers who will blindly follow him offthe cliffwhile they keep chanting mmmmmm m mmmm Barack Hussein Mohammed Obama mm mmmm mmm

Posted by: JUNGLEJIM123 | November 18, 2009 11:10 AM | Report abuse

There are two reasons why republicans are opposed to Holder's decision to hold the trials in New York: (1) Press coverage in the US will reveal the full extent of the Bush/Cheney torture program and pave the way for both US and international prosecution for war crimes and crimes against humanity, and (2) The republicans are cowards.

Posted by: Byrd3 | November 18, 2009 11:12 AM | Report abuse

Holder has become the mouth piece of Obama, I believe that Holder is piece being set up to take the heat of the NYC bad trial decision.
NYC was never a target, and this is not a war.

Posted by: RayOne | November 18, 2009 11:12 AM | Report abuse

My sentiments exactly, Ms. Marcus. Thank you.

Posted by: gsross | November 18, 2009 11:12 AM | Report abuse

Gerson gave up on objectivity long ago. His reputation now depends on his ability to exonerate the Bush familty, A.K.A. his old boss. Part of this process is to try and discredit Obama, the anti-Bush. He, like Krauthammer, hates anything Obama and has bet his reputation as a pundit and commentator on sullying Obama's reputation. Can anyone who has read any of this columns in the past 6 months honestly deny this?

Posted by: LouisianaDoug | November 18, 2009 11:15 AM | Report abuse

The "normally mild-mannered" routine is essential to Mr. Gerson's pitch, for he too subscribes to the Marcus General Theory of Punditry and hopes that seeming wimpiness will add virtual Gravitas and apparent solidity to the gaseous emissions of an ideological windbag: himself.
Good for Marcus for not letting this particularly fragrant packet pollute the atmosphere due to codes of collegial etiquette. Sometimes I wonder if the WaPost prints some of these rants as a malicious antic to perk up its readers, in much the same way (as E.J.Dionne notes today) that Sarah Palin needs to be constantly digging at the media to maintain her privileged position therein. Oh, the Conservatives, their favourite game is to play the 'Liberal Media'.

Posted by: rarignac | November 18, 2009 11:19 AM | Report abuse

Ms. Marcus, defend Holder's sweeping of voter intimidation under the rug by nightstick-wielding black panthers.

These terrorists should be tried in front a military tribunal, not in a civilian court. This is an insult to the American people and the victims of 9/11! These thugs should not be allowed to sully American soil esp. the hallowed ground of NY city.

Should anyone wish to know the views of the firefighters, police, pilots, maimed civilians, and most of all the victims families that were so devastated on that horrific day - go to

Posted by: inmanorj | November 18, 2009 11:28 AM | Report abuse

New York is not the right place to hold this trial. This is just plainly dumb and morally wrong.

Posted by: trumeau

By what stretch of logic do you come to this conclusion? It was an act of terror and mass murder on American Soil and so easily falls under the domain of the Federal courts. Also, some people seem to have selective memory and ignore all the other terrorist cases that have been successfully prosecuted. Remember the trial for the first bombing of the Towers held in NY? Bad guys are still rotting in jail. Explain why that didn't go as it should.

Posted by: jayjordan | November 18, 2009 11:30 AM | Report abuse

Barack Obama, who managed to flee the country the day before the announcement, is the first anti_American...American president. A weak America suits his worldview and that of Soros et al. America bad, we must pay..we must change.

Posted by: jhr1 | November 18, 2009 11:30 AM | Report abuse

In regard to the first defense of Holder:
"As to risk to New Yorkers, like those of us here in Washington, they know their city is a target, trial or not"

Sure, we New Yorkers are at risk all the time, but holding a trial here will be a cause celebre and give a time certain for every maniac in the four corners of the earth to rally around and focus on and target.

Second objection: As to AG Holder's intent, who knows? But to say the intent of the trial is to be fair, when it will be held at the scene of the catastrophe and all the potential jurors are victims of that event ( all New Yorkers are victims of 9/11) is just difficult to comprehend as a logical and dispassionate conclusion.

Holding trials in NYC for the plotters of 9/11 serves neither justice nor protects and preserves the public welfare.

And if one bomb goes off, and the streets of NYC turn into a blood bath like we have seen in Peshawar, the credibility of the Obama admission will be kaput. Holder's decision is incredibly stupid, short sighted, and irresponsible. And the shame is that innocent people may suffer for it.

The gaul of AG Holder challenging the courage of New Yorkers! We have nothing to prove to AG Holder or anyone. We should not be holding a trial for some dubious concept of justice, for the appearance of not being fearful. What nonsense, what extraordinary lunancy on the part of a high official of state.

Posted by: maddymappo | November 18, 2009 11:31 AM | Report abuse

This AG is toast, as the circus evolves into the O.J. slow speed chase.
The next one should have military experience.

Posted by: RayOne | November 18, 2009 11:50 AM | Report abuse

With respect, and careful reading, I think the Marcus General Theory of Punditry applies to your rebuttal not the original piece.

Posted by: gomer3 | November 18, 2009 12:16 PM | Report abuse

Posted by: WK437: "I've actually stopped reading Krauthammer and Gerson on line. I may read their columns from time to time in print, but I won't read them on line, where traffic to their pages can be tracked. I don't want to responsible for any increase in the traffic to their sites, which might potentially be mistaken for either agreeing with them or wanting WP to keep them."

I don't read them for the same reason, if I accidentally hit their column I post in comments that folks should stop reading their columns if they want those 2 to go away...

Posted by: datdamwuf2 | November 18, 2009 12:18 PM | Report abuse

I can't believe all of you who think holding these trials in NYC is a bad idea... I think it's fairly brilliant on Holder's part; where else in this country are you most likely to find a jury pre-disposed to the prosecution's case than NYC?
As far as Mr. Gerson is concerned, from what I've seen ALL of his opinions are based on ideological predispositions, of course he expects everyone else to think like he does... human nature.

Posted by: PeterPamZ | November 18, 2009 12:25 PM | Report abuse

There is no way under the sun that Eric Holder can be or should be defended. He is doing two terrible things: He is handing to al Qaeda exactly what they want, and he is constructing a craven platform from which, once again, the pathologically obsessed left can embarrass and humiliate Bush. What a depraved and costly 'reckoning'. What Holder is doing is not only criminal, it is traitorous. I would also like to report abuse concerning one blogger who takes a swipe at Gerson and Krauthammer: the abuse is the blogger's 'abusing' the intelligence of normal Americans.

Posted by: david-mckenzie | November 18, 2009 12:34 PM | Report abuse

Total disgrace to journalistic objectivity


Holder is apartisan, far-left hack from a terrorist-defending law firm who is clearly working to create a political circus by these trials.

He is once again calling Americans "Cowards" and accusing those who question this of "Cowering before terrorism"!

The president alone should have made this decision and publicly explained it.

But that would never do for this fawning poser who is presently saying that his apologies have "Enhanced" America's status in "The World."

How has any of that blather (Oops-"Smart Power") worked on Russia, Iran, Palestine, Cuba, China, Venezuala, N. Korea, etc?


Posted by: F-4Phantom | November 18, 2009 12:36 PM | Report abuse

"Attorney general nominee Eric H. Holder Jr. repeatedly pushed some of his subordinates at the Clinton Justice Department to drop their opposition to a controversial 1999 grant of clemency to 16 members of two violent Puerto Rican nationalist organizations, according to interviews and documents…
…President Clinton’s decision to commute prison terms caused an uproar at the time. Holder was called before Congress to explain his role but declined to answer numerous questions from angry lawmakers demanding to know why the Justice Department had not sided with the FBI, federal prosecutors and other law enforcement officials, who were vehemently opposed to the grants.
Some religious groups and influential individuals, including President Carter, had endorsed the commutations. But Clinton’s decision outraged law enforcement officials, who had tried to contain a bombing campaign in New York, Chicago and elsewhere in the 1970s and 1980s by groups seeking independence for Puerto Rico from the United States.
New interviews and an examination of previously undisclosed documents indicate that Holder played an active role in changing the position of the Justice Department on the commutations.
Holder instructed his staff at Justice’s Office of the Pardon Attorney to effectively replace the department’s original report recommending against any commutations, which had been sent to the White House in 1996, with one that favored clemency for at least half the prisoners, according to these interviews and documents.
And after Pardon Attorney Roger Adams resisted, Holder’s chief of staff instructed him to draft a neutral “options memo” instead, Adams said.
The options memo allowed Clinton to grant the commutations without appearing to go against the Justice Department’s wishes, Adams and his predecessor, Margaret Colgate Love, said in their first public comments on the case.
“I remember this well, because it was such a big deal to consider clemency for a group of people convicted of such heinous crimes,” said Adams, the agency’s top pardon lawyer from 1997 until 2008. He said he told Holder of his “strong opposition to any clemency in several internal memos and a draft report recommending denial” and in at least one face-to-face meeting. But each time Holder wasn’t satisfied, Adams said.
The 16 members of the FALN (the Spanish acronym for Armed Forces of National Liberation) and Los Macheteros had been convicted in Chicago and Hartford variously of bank robbery, possession of explosives and participating in a seditious conspiracy. Overall, the two groups had been linked by the FBI to more than 130 bombings, several armed robberies, six slayings and hundreds of injuries"

Posted by: mharwick | November 18, 2009 12:39 PM | Report abuse

Here we go again: per Chambers 14 "Legally speaking, KSM is, at best, an illegal enemy combatant. He is not entitled to the rights, protections, rules, and presumptions afforded to *American citizens* in a criminal trial conducted in civilian courts."

(I note, by the way, that the definitions that have been used are "illegal combatant" or "enemy combatant". I don't think I've seen any government representative use the combination of "illegal enemy combatant", though I could easily be wrong about this.)

First, KSM was not captured on a battlefield. He was picked up by the Pakistanis, who turned him over to us. (Many of the detainees at Gitmo were picked up by some other group and turned over the U.S. forces.)

Second, whatever made you think that only American (i.e., U.S.) citizens are entitled to a criminal trial in civilian courts? If you read the Bill of Rights, the famous Fifth Amendment says "no person"; the Sixth, speaking specifically about criminal trials, refers to the "accused".

I haven't re-read the Constitution in detail lately, but I believe the only time rights are limited to citizens is when voting rights are defined.

Posted by: vklip | November 18, 2009 12:39 PM | Report abuse

Gerson isn't mild mannered; he's mild minded. He's dumber than a rock as evidenced by the fact that he's buddies with George Bush. In addition, he's an evil person, having contributed to lying American into an illegal war for oil. He shouldn't be writing for the Post, he should be writing for some prison rag.

Posted by: jkarlinsky | November 18, 2009 12:46 PM | Report abuse

obama, holder want to attack the bush/cheney record at these show trials. why isn't ruth marcus honest enough to say so...

she and they hope to distract the voters from obama's doubledip recession, failure to spur the economy, inability to make a realistic health bill, etc...

And of course Obama's penchant for bowing low to dictators like the Emperor of a country which in living memory we were at war with, a country which murdered,imprisoned, tortured millions;

While Obama can't even manage a bow to Queen Elizabeth even thought Britain is an ally or I should say, was an ally. Hope they take the blinkers off and dump Afghanistan back in Obama's lap.

Posted by: gmallet0709 | November 18, 2009 12:47 PM | Report abuse

These people are not US citizens and should not be tried in a court room in New York they should be tried in a military court rorm.

Posted by: maryvpoole | November 18, 2009 12:48 PM | Report abuse

You have to ask the Post's editor whether the outpourings of Gerson and Krauthammar advance any helpful arguments. The columns usually sound like political tracts. The Post should define what an opinion piece is: perhaps invite a group to discuss this. For now most of the op-ed pieces by neocons and assorted right wing writers look like warmed over offerings of bilge.

Posted by: bitterpill8 | November 18, 2009 12:59 PM | Report abuse

I would not even give these barbarians the distinction of being illegal enemy combatants. They are simply criminals. They deny the very essence of civilization and belive they can kill as they please. It is just and right that civilization try and met out justice to them. I live in NYC and want them tried here before the very people they committed this crime against.

I don't know how or why conservatives have twisted the idea that somehow treating these men like criminals is to treat them as US citizens? But if you have no courage or faith in the very institutions under which you live then leave these barbarians to men who do have the courage and faith to face them in the name of civilization.

Posted by: kchses1 | November 18, 2009 12:59 PM | Report abuse

When did giving a trial to someone acused of a crime become an issue?

I was raised to think that the alternative to trying an accused was letting him go.
Now, the entire debate is over whether to have the punishment before or after the trial.

Posted by: F_L_Palmer | November 18, 2009 1:00 PM | Report abuse

Jayjordan responds to trumeau- "New York is not the right place to hold this trial. This is just plainly dumb and morally wrong.
Posted by: trumeau

"By what stretch of logic do you come to this conclusion? It was an act of terror and mass murder on American Soil and so easily falls under the domain of the Federal courts."

Just as Pearl Harbor could "easily fallen under the domain of the Federal Courts"? And not the military and the people of America to respond to an act of war?

Yes, theoretically, we could have "The Victim Families" of Dec 7th, 1941...and The Trial of The Torpedo Bombers in Federal Court.

Gerson does not make a as good a case for NOT treating KSM as a common civilian criminal as Pat Buchanan does. Buchanan, who I have revised my opinion on considerably after he came out against "Wars of Neocon Adventure" and most Bush policies.
You can go to Drudge and link below to Buchanan and read it. Not that Gerson is off-mark, just that Buchanan says it a whole lot better and covers all Marcus's weak critiques.

Posted by: ChrisFord1 | November 18, 2009 1:02 PM | Report abuse

Americans frightened of terrorists in prisons in America and only secure if they are kept in Cuba.

In 2004 there were American afraid of bin Laden hiding under their beds with the release of a bin Laden tape one week before the election of the President.

And now a show trial in New York City that the Attorney General says is not a show trial but the trial of the century.

Obama said those offended by the legal privileges given to Mohammed by virtue of getting a civilian trial rather than a military tribunal won't find it "offensive at all when he's convicted and when the death penalty is applied to him."

It is not a show trial but Americans will be happy with the death penalty.

Mr. President, Americans are offended by a show trial in New York City and an administration that appears more concerned with spectacle and circus.

Americans are not frightened of the terrorists on trial, they are offended by by an administration that needs to use show trials.

Quote of President
Obama, Holder defend 9/11 trial decision
By Devlin Barrett
Associated Press

Posted by: bsallamack | November 18, 2009 1:04 PM | Report abuse

There is one thing that has become apparent over the last 8 years. Republicans, who are always full of machista bravado and bluster, are pathetic sissies who live in fear. and the ignorance of the right is beyond pathetic. we tried the Nazi's in court rooms. the world did not end. Or is it you have no confidence in the legal institutions of our "great republic?"
pathetic wimps.

Posted by: boricuaogun | November 18, 2009 1:06 PM | Report abuse

Considering that Mr. Gerson gave voice to some of the Bush administration's most virulent lies, the falsities inthis attack are far from surprising.

Ultraconservatism has always been entwined with fear, but this neoliberal, neocon, teabagging crew really takes the cake.

Posted by: rogied25 | November 18, 2009 1:08 PM | Report abuse

Atty. Gen. Holder needs to read "Anatomy of a Trial: Public Loss, Lessons Learned from The People vs. O.J. Simpson" to avoid some of the prosecutors' blunders in the Simpson murder trial and to keep the clowns at bay.

Posted by: jerrianne | November 18, 2009 1:12 PM | Report abuse

what no one ever addresses--is why is Holdner having to do this in the first place? Rather why wasn't this done under Bush and Gonzales--God knows they had enough time.

Posted by: retiredmil | November 18, 2009 1:16 PM | Report abuse

This sleaze is the same Holder who sold pardons for Clinton. His lack of morals is the reason he works for BO.

Posted by: carlbatey | November 18, 2009 1:27 PM | Report abuse

I am baffled by the furiously frantic raving from the GOPers about not putting KSM through a civilian trial. They seem to work from the premise that only a "kangaroo court" could possibly get a conviction in the American justice system. They never seem to understand how our legal system works and never seem to support it, preferring to ignore and override the Constitution (ie the USA PATRIOT Act they insisted on pushing through Congress during the GWB admin).

Posted by: sbirchall | November 18, 2009 1:33 PM | Report abuse

While this may be rallying the Republican base, they look like a bunch of idiots to the independents. Not too many people are worried about terrorists escaping and quite a few are wondering why they haven't already been tried. And considering that the leading Republican voices are Glenn Beck and Sarah Palin, they already have a court jester image problem to overcome.

Posted by: caribis | November 18, 2009 1:38 PM | Report abuse

If someone could prove on economic policy that Obama was the anti-Bush I would sleep much better at night.
It seems impossible to me that anyone could be as "good" as Bush was "bad.

Gerson and Krauthammer as well as Will are usually writing articles to make themselves feel good.

There is little if any real analysis or in-depth argument in their articles.

Both Charles and George save their best stuff for the camera and even that is only made palable by the fact that no one else on camera knows anything either.

Posted by: agapn9 | November 18, 2009 1:49 PM | Report abuse

The fact that neither Gerson nor any of the Right wing commentators on this page wants to admit is this: all of the objections they have made to handling this prosecution in our civilian court system were also made in regard to past trials of terrorists conducted in the same system, and none of those objections proved valid.

No "circus" atmosphere was created, no terrorist retaliation occurred, no classified information was exposed and no defendant got away with his crimes.

Why in the world should we keep listening the same people who have gotten this issue wrong again and again?

Posted by: | November 18, 2009 1:49 PM | Report abuse

What will make this a show trial is people like Limbaugh, Hannity, Beck and Fox news trying to make this all about Obama and hoping and praying that something terrible happens just so they can be the first to say "we told you so".

If Republicans knew what to do and how it should have been done then they should have done it. Instead they left these people rot with no intentions of doing anything. It's just another mess that President Obama has to clean up without any help from Republicans.

And Republicans want to call Democrats weak???? They have been whining like babies ever since the announcement. BE AFRAID, BE VERY AFRAID. THEY'RE COMING AFTER US. Exactly what the terrorist want. Keep us in fear and keep us from moving forward. Be afraid people and vote for us, I mean after all, we Republicans only let one terrorist attack happen on our watch before we started to pay attention. Then we started two wars, never paid for either, never held anyone accountable for 9/11, and don't know where Bin Laden is nor do we care. And in the process almost bankrupted the country !!!

Posted by: catmomtx | November 18, 2009 1:53 PM | Report abuse

To chambers14, a word about the Geneva Conventions and its applicability to so-called "illegal combatants": the Conventions actually state that those who commit crimes that remove them from the protections of the conventions then must be dealt with by the criminal justice system of the country that is holding them. And, by the way, the individuals must be tried by a "competent tribunal normally established for that purpose." That means no special tribunals, etc.

Your proposal of trying KSM and friends by court-martial is a good one, which is seconded by many JAG officers. However, you should know that in many ways, courts-martial provide even more protections for an accused. Whatever differences there are in the procedural rules, courts-martial and federal courts have effectively the same rules of evidence.

So, in order to be consistent with international law regarding the disposition of "illegal combatants," we have to try them in either a court-martial or in a civilian court.

As much as you might like to do it, we can't just take them out and shoot them. Unless we want to turn our back on the idea of the Rule of Law. Maybe that is too inconvenient a concept to you...

Posted by: DM_Inf | November 18, 2009 2:02 PM | Report abuse

Holder is a traitor and an idiot. His game plan is to put the Bush Administration on trial, leak our military, CIA and Homeland Security policies and processes while giving Obama's muslim brothers a pass. This is NOT A CIVIL ACTION. These are terrorist and prisoners of war; they have no rights. They should be tried by the Military in GITMO - not NYC. The pernicious Obama Administration is dismantling our entire judicial system, not to mention the constitution, eroding our democracies and freedoms, and wrecking our economic system. We will not survive four years of Obama.

Posted by: magsthecat1 | November 18, 2009 2:03 PM | Report abuse

Huh? Reeks of partisan politics, but there is plenty of blood to go around on many people's hands. What does it matter whether it is Bushe's war or Obama's war or AIPAC's war. I THOUGHT that the American people had their vengeance and pound of flesh nearest the heart (their own heart) by attacking Iraq, killing Saddum and over a million Iraqui civilians, plus 4400 US servicemen todate, and 145 service men each year who committed suicide (NPR last night) since 2003. And now these guys are trying to sound sanctimonious? Bah it reeks.

Posted by: yard80197 | November 18, 2009 2:05 PM | Report abuse

Michael Gerson should be in prison. He was instrumental in knowingly misleading the American people into entering a war that killed 4,000 of our soldiers and over 1,000,000 civilians.

That makes Khalil Sheik Muhammed's (complicit) horrible act - which resulted in 3,000 deaths - look like an alley mugging.

In the UK, Tony Blair is now facing an official inquiry over deceiving the public, distorting intelligence and taking the country into an illegal war in Iraq:

What is it about the American people that precludes similar justice from being done to our officials - who after all were the original instigators of the act (Blair just being dragged along for the ride)? Is it that we are sheep, or are we secretly so tickled over war that we just kind of let it slide?

Here the lying leaders still stay in office, and their chief propaganda ministers become columnists for the Washington Post. Where is our sense of values? Where is our morality? Where is our backbone? Does anyone know? Ruth?

Posted by: B2O2 | November 18, 2009 2:06 PM | Report abuse


Gerson proposed the use of a "smoking gun/mushroom cloud" metaphor during a September 5, 2002 meeting of the White House Iraq Group, in an effort to sell the American public on the nuclear dangers posed by Saddam Hussein. According to Newsweek columnist Michael Isikoff, "The original plan had been to place it in an upcoming presidential speech, but WHIG members fancied it so much that when the Times reporters contacted the White House to talk about their upcoming piece [about aluminum tubes], one of them leaked Gerson's phrase — and the administration would soon make maximum use of it."

Posted by: B2O2 | November 18, 2009 2:16 PM | Report abuse


That's right, it's a criminal action. Nothing is funnier than when ignoramuses heads explode. Fondle your caps lock key, you'll feel better. The Bushies know just where this is going, and it's not circus trials or terrorist attacks in New York City. They don't want to see these guys tried because Bush will be shown up as an idiot and grossly inefficient for not getting this job done years ago.

Posted by: fzdybel | November 18, 2009 2:21 PM | Report abuse

I don't get it. Why do these right wingnuts want to dignify a criminal act (terrorism) by calling the terrorists "enemy combatants," even if they do twist the concept into an Orwellian doublespeak phrase, "illegal enemy combatants?" Those who commit criminals acts on American soil should be tried as criminals, not warriors. And that is exactly what Attorney General Holder plans to do.

Posted by: BuddyK | November 18, 2009 3:10 PM | Report abuse

All of Gerson's points were brought up several days ago by the usual critics of Prez Obama. Can't a WAPO conservative come up with something fresh to dislike about Obama? How about Mrs. Obama "brainwashing" school kids in Denver yesterday by suggesting mentors would be helpful?

Once again, conservatives don't just disagree with Democrats, they assign evil motives and question their patriotism.

Gerson seems to forget that the Bush program of military kangaroo courts (not real tribunals) collapsed in confusion, and with many military prosecutors and judges agreeing the program wasn't working.

As our generals have said, it is not enought to just win the shooting war, we have to win the war of ideas so that recruiting for terrorism slows down.

First the conservatives want to fight terrorism as if it was a war. Then they argue that Geneva conventions do not apply because terrorists are criminals, not soldiers. But then, we can't torture criminals, so terror suspects must be something else so that "enhanced interrogation" becomes legal. I thought conservatives were opposed to situnational ethics?

Posted by: outragex | November 18, 2009 3:10 PM | Report abuse

Wordflak for the Cheney/Bush 8 year assault on freedom and the Constitution, either has a lot of gall or continued to drink neocon Kool-Aid

Posted by: mybandy | November 18, 2009 3:11 PM | Report abuse

But of course there's no use calling out Gerson...

His column was incited, er, encouraged by
the Vice President's boys. Gerson
really never had a real thought,

some musings for the speechs here eventually wrote, but no real thoughts.
The stuff he writes today was outlined for set to words....

and so that the tracks run through his hapless self. HOpefully, he swung his nifty little haircut and made the hair

fly, as he was instructed. And waved his little perfectly manicured hands. Can you just see it?

Posted by: whistling | November 18, 2009 3:30 PM | Report abuse

You should make it clear who Gerson is/was. He's a Bushie so they don't want the light to shine on what they did.

A crime committed on American soil should be prosecuted in an American court. Period!

Bravo to Eric Holder for sitting listening to people (especially those Repub. Senators) trying to denigrate him and his decision and giving it back to them in a professional way.

Posted by: rlj1 | November 18, 2009 3:44 PM | Report abuse

Interesting pieces. As a lawyer married to a lawyer, and on opposite sides of this issue I might add, I'm acutely aware that reasoned arguments can be made for both the military commission and federal court avenues for the trials of the accused 9/11 conspirators.

On the one hand, there is a perception that KSM and his ilk will more likely be found guilty if tried in military tribunals, and on the other hand there is the perception that any conviction in federal court will be more likely to be seen as legitimate because to the procedural safeguards afforded the accused.

The idea that security issues are beyond the ken of NYC's and the US's finest doesn't say much for the confidence of those type critics in our law enforcement personnel. As to the circus atmosphere suggested by Gerson and the like, ever been in a federal courtroom? Circus atmosphere is one of the farthest things removed from what goes on in one, and anything to the contrary can result in a would-be disrupter experiencing one of those things that I long ago decided I did not need to experience to have said I lived a full life.

I tend to believe that we are a country of laws that is made stronger by the protections we afford the accused before they become convicted criminals than we are by justice meted out in private by guys in uniforms. That concept was pretty important to a bunch of guys in powdered wigs in Philadelphia a couple hundred and twenty or so years ago. And no, KSM is not entitled to the full protections of the Constitution, but I think SCOTUS was full of crap when it agreed that a ountry could be at war with a concept.

Posted by: chafinlw | November 18, 2009 3:53 PM | Report abuse

Here's a point by point refutation of Holder's position, and by extension Marcus' feeble defense thereof, by Andrew McCarthy, the former federal prosecutor who successfully tried Sheik Omar Abdel Rahman and eleven others connected to the 1995 World Trade Center bombing:

Especially relevant is the section devoted to classified information. In point of fact, potential terrorists can glean valuable insight from information that isn't technically classified in nature.

Moreover, instances of Holder disappointing his allies on the left do not in themselves guarantee that his decision in this case was free of partisan consideration. Given Holder's well-documented advocacy on this very subject, I would argue that it's simply impossible to conclude that his decision represents something other than a cynical political calculation. Holder and Obama are betting that a criminal trial will enable defense attorneys to expose controversial Bush-era policies, thereby providing the idiotic and rapid anti-Bush left with a sop and shoring up the Obama administration's liberal base in the bargain.

This is nothing more than another laughable and transparent ploy to gain partisan advantage, clumsily disguised as a stirring defense of higher principle. Hope and change -- Chicago style!

Posted by: danner1 | November 18, 2009 4:01 PM | Report abuse

Thanks, Ruth

Posted by: chris_holte | November 18, 2009 4:27 PM | Report abuse

i think the real reason for holder's decision is an attempt to divert the public from their developing opinion on the incompetence of the obama administration to a trial of george bush.

Posted by: marsho87 | November 18, 2009 4:33 PM | Report abuse

It seems like only republicans live in constant fear of what may happen, maybe, possibly, in the future, someday, perhaps. The rest of us citizens of this great nation are a can-do bunch who aren't afraid of some two-bit terrorist who got lucky on 9-11

They can try and kill me if they want to, and maybe even succeed, but they will not now, or in a million years cause me to live in fear like republicans do.

Gearson, stop playing politics with the war on terrorism. Oh, I forgot that would go against your "President Obama is wrong about everything all the time," ethos.

Posted by: cfeher | November 18, 2009 5:05 PM | Report abuse

i agree with the comment that republicans are cowards. all bullies are.their fear tactics are old and worn and wont work on the strong but only on the weak.i dont believe holder is weak.i really hope he can find the time to go after the bush/cheney lies, war, torture etc.a conviction there would be great.

Posted by: donaldtucker | November 18, 2009 5:11 PM | Report abuse

I like the Marcus theory of punditry. The intellectual force behind a column is inversely related to the amount of invective. That surely applies to some of the comments that have been posted by readers here.

Posted by: wrgraham | November 18, 2009 5:56 PM | Report abuse

The idea of a fair trial is that it exposes the guilt of the guilty so that there are no reasonable doubts and that there is a consensus, international preferably, that any punishment administered is well deserved, an act of justice. The worse the crime the more a fair trial is important.
Justice exercised through military organisations (except on their own members) is part of an attack by the state on its enemies, since that is what armed forces do. Since that is what it is it is not really justice, since the judge and the prosecutor are on the same side and have the same objectives.

Posted by: MHughes976 | November 18, 2009 5:57 PM | Report abuse

Here's the Messiah himself expounding on the virtues of military tribunals in the case of defendants such as ... Khalid Shaikh Mohammed!:

Posted by: danner1 | November 18, 2009 6:06 PM | Report abuse

Once again, conservatives spit on every honored mode of operating exemplified by the Greatest Generation in US history. That generation defeated not one but two expansionist empires without lowering our reputation by torturing.

And now they turn their backs on the example of a public trial, as was done in Nuremburg (and worked out quite well I might add). Figures.

Posted by: B2O2 | November 18, 2009 6:09 PM | Report abuse

The Nuremberg trials were military tribunals.

Posted by: danner1 | November 18, 2009 6:19 PM | Report abuse

Thank you, Ruth Marcus.

This is precisely the sort of patient, well-researched discourse that seems in such short supply these days. And, as per your axiom, your column carries real intellectual weight--and staying power.

Very, VERY much appreciated.

Posted by: OctoberLanguage | November 18, 2009 6:32 PM | Report abuse

In the event that Holder proves wrong,
and the KSM trial turns into a farce like the O.J. Simpson trial,
that will be the end of the Obama administration politically.

Their credibility will be so shot that they won't get a single bill through Congress as long as Obama is POTUS.

So liberals, stop with all the bravado and think about the risk you're taking with your political lives. Just as the Iranian hostage crisis destroyed the Carter presidency and gave us Reagan, a disastrous KSM trial will destroy the Obama presidency and give us--whom? President Sarah Palin? President Ann Coulter?

Posted by: sinz52 | November 18, 2009 6:53 PM | Report abuse

Thank you. This sort of pushback against the raving loonyism of several of the Post's op-ed writers is long overdue, and most welcome.

One small note, though: Mr. Gerson didn't really do a "takedown" of AG Holder. What he did was instead what he usually does: some petty and partisan sniping that mainly missed its target and instead exposed Mr. Gerson's own incompetence.

Posted by: sembtex | November 18, 2009 8:09 PM | Report abuse

I might be missing something, but weren't military tribunals traditionally used to try war criminals that at least had the decency to wear the uniform of an organized army? These terrorists like to consider themselves as being part of an Army of Allah, but they don't have the courage to wear a uniform and face us on a battlefield. Instead, they hide in the shadows and murder unsuspecting civilians.

By trying them in a military tribunal, wouldn't we be conferring the military status that they desperately seek? By trying them in criminal courts, we are sending the message that they are murderous criminals, not soldiers.

Posted by: jimestw | November 18, 2009 8:29 PM | Report abuse

Once Holder engineered the Marc Rich bribe for pardon scheme he became permanently tainted goods. He has no integrity.

The trial in NY is nothing more than an attempt to take the spotlight off of the miserable performance of the Obama Administration.

Claiming jobs for non-existent districts? Once again when another Democratic President gets caught in a lie all one hears is "Mistakes were made".

Its Holder and the rest of the corrupt Democrats who should be on trial in NY.

Posted by: krankyman | November 18, 2009 8:40 PM | Report abuse

Marcus writes: "Gerson complains of the “incoherence” of Holder’s decision to assign some cases to military tribunals, others to federal court; and I think it’s fair to say that the distinctions between these two classes of case have not been well explained."

Clearly they have not been explained because there is no rational reason to try one set of unlawful combatants in a military tribunal and another in what could be a three year debacle in New York City that does not give the result that the vast majority of Americans want-- the death penalty for KSM and his plotters if they are guilty. Forget that they have already admitted guilt and accepted the death penalty as their sentence.

Why did Holder do this? I have several theories: 1. He gets to allow his lawyers to show off in what will be the most publicized trial in the history of the country; 2. Holder is an opponent of the death penalty. The chances of KSM being executed after a civilian trial compared to after a military tribunal are greatly reduced. All it takes is one juror, as we learned in the Moussaui trial. The country now has to pay to keep that verminous individual alive for the rest of his life.

3. They get to continue to slime the Bush administration for the next several years, or as long as this trial lasts, which will surely be several years at least. Most capital punishment cases take at least 8 years to progress to the ultimate punishment. Even if KSM is convicted, the chances that he will be put to death in an Obama administration is unlikely.

The reasons Holder et al cite to turn this into a circus civilian trial before the Committee today were unconvincing and unsupportable. Holder et al seem to think that America owes the world a show trial to prove to the world our system of jurisprudence is superior to all others. That is completely and utterly unnecessary, because most American know that already. Staging a show trial for the rest of the world is nothing more than an enormously expensive public relations campaign that will not benefit the people of the United States, the city and state of New York, and the families of the victims in any way. It's more likely it will have the opposite affect. Putting 9/11 in the news every day 8, 10, 12 years after the fact is an act of gross insensitivity. This case could have been quickly and efficiently handled by military tribunal. Holder et al seem intent on punishing and torturing the people of the United States for years on end in order to pursue the idiotic quest to enhance the image of the United States around the world, as if they have proof that such a trial would actually do that.

This was an utterly fatuous decision and, as Holder proved today, completely indefensible.

Posted by: theduke89 | November 18, 2009 10:12 PM | Report abuse

Do you people who agree with Holder's decision even know what a "Bronx Jury" is? (See: OJ Simpson) Do you realize how many America-hating whack-job lefty jurors there are out in the NY jury pool? Are you even aware of psycho judges in NY like "Turn 'em Loose Bruce"? You are assuming that everyone in NY would convict these animals. Get over it. There's at least a 50-50 chance that this trial in civilian court will go down the tubes.

Posted by: CraiginJersey | November 18, 2009 10:16 PM | Report abuse

"Even if Mohammed were somehow acquitted, it’s not as if he would saunter off to brunch in Tribeca. He’d no doubt be indicted and held on other charges, or preventively detained." If the outcome of the trial has no bearing on the incarceration of the terrorists, what is the point? Am i missing something? Just skip the trial and keep them locked up forever. Save some of those tax dollars you're so eager to spend.

Posted by: ajsja | November 18, 2009 10:38 PM | Report abuse

"Even if Mohammed were somehow acquitted, it’s not as if he would saunter off to brunch in Tribeca. He’d no doubt be indicted and held on other charges, or preventively detained." If the outcome of the trial has no bearing on the incarceration of the terrorists, what is the point? Am i missing something? Just skip the trial and keep them locked up forever. Save some of those tax dollars you're so eager to spend.

Posted by: ajsja | November 18, 2009 10:38 PM | Report abuse

Your comment from the article:
First, on the merits of the decision to try Mohammed in federal court rather than through a military tribunal. Note to Mike: They have the presumption of innocence in tribunals, too----------------

This is funny. Both democrts and Obama himself today said -when KSM is convicted and put to death -
I wonder how many millions around the world watched Obama say that today on the TV airwaves. So you see, even the President has him guilty and then dead. And then when other democratic Senators say if he is a acquitted he will immediately be picked up and never see the light of day, therefore there is no need for anything more than a military tribual and not this farcical media circus that will ensure keeping this man in the media spotlight for years and years to come. The world now knows the President has already decided he is guilty so this trial will be ridiculed.

Posted by: justmyvoice | November 18, 2009 10:49 PM | Report abuse

Bothers me greatly in this affair is the vision of Holder touting the eminent fairness of the American judicial system and at the same time essentially assuring a conviction, and, if I heard correctly, the death penalty, as well.

Now, which is it, a fair and impartial judicial system or one that the chief prosecutorial officer in the land can guarantee will deliver the desired outcome?

Posted by: bfieldk | November 18, 2009 11:41 PM | Report abuse

Let's face it: the bush really dropped the ball on this whole gitmo/tribunal mess and now they try to blame anyone who try to clean it up as "being reckless and soft on terrorists." they had their chance and how many did they convict in 5 years? their whole handling of gitmo is a shame.

no wonder why they attack anyone who try to deal with this in an intelligent way. they don't want to expose their incompetence.

look at who have been out in the forefront of the attack: all of the neocon bushies, including gerson! this should alert us to the bs already.

Posted by: JoeBridgeman | November 19, 2009 12:26 AM | Report abuse

"Intellectual force" is one phrase I would never use in relationship to Gerson. Or even in the same paragraph.

Posted by: rashomon | November 19, 2009 12:43 AM | Report abuse

If Gerson and his friends were smart then the world would not be in the mess it is in.

Posted by: digby2 | November 19, 2009 7:17 AM | Report abuse

What Gerson and the Bushies are really afraid of is that the trial may throw some light on how bad they handled the crisis.

Posted by: digby2 | November 19, 2009 7:20 AM | Report abuse

chambers14 @ 11/18 10:41 am : [Legally speaking, KSM is, at best, an illegal enemy combatant. He is not entitled to the rights, protections, rules, and presumptions afforded to *American citizens* in a criminal trial conducted in civilian courts.]

This is complete and utter nonsense, and betrays a serious lack of understanding of the U.S. in general, and the Constitution in particular. Rights and protections are not afforded to citizens just because they are citizens. They are afforded to citizens because all people are presumed to have those rights, period. That is the basic assumption the U.S. was built on.

That was what Thomas Jefferson meant when he wrote, in the DoI, "We hold these truths to be self-evident: that all men are created equal; that they are endowed by their creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness." In other words, people have rights because they are people, not because the government grants those rights. That is the entire philosophical basis of our country.

Furthermore, the Constitution is quite explicitly not a declaration of citizens' rights. Those rights are assumed to exist because, again, human beings have those rights merely by being human. Instead, the Constitution is a limit on governmental authority, in order to make sure the government can't trample on human rights.

Now, whether you arm-chair warriors and chickenhawks like it or not, Mr. Muhammad is a person. Therefore, he has the same rights and protections of all people. This is not open to dispute, no matter how much you try to dispute it. Furthermore, nowhere in the Constitution does is say, "The previous sections are null and void for terrorists/foreigners/people Pres. Bush didn't like." So Mr. Muhammad *does* have rights, and his rights *are* protected against abuse by the U.S. government.

And as for that ridiculous nonsense that, "Legally speaking, KSM is, at best, an illegal enemy combatant," this is *not* legal. In fact, it is quite explicitly *illegal*. The Bush administration invented this justification specifically to do an end-run around the law, and they said so explicitly and repeatedly for pretty much all of the previous 6 or 7 years. Therefore, since this system of detaining Mr. Muhammad and others is not justified under the law, objecting to federal trials on this basis is beyond laughable.

Posted by: edta | November 19, 2009 12:03 PM | Report abuse

Kudos to Marcus for being willing to stand up to the raving idiocy of one of her own colleagues.

It's a sorry state of affairs when the Post has to be commended for merely providing a rebuttal to a piece so mind-bogglingly stupid, hateful, disrespectful to American Constitutional principles and the rule of law that it hardly even belonged in the Moonie Times, rather than possessing the editorial discretion not to publish said article in the first place.

I suppose Post readers will just have to take what we can get.

Posted by: a_lafollette | November 19, 2009 12:05 PM | Report abuse

I would like to know what Marcus has been smoking?

Posted by: pipian | November 19, 2009 1:29 PM | Report abuse

Events wherein people using powerful weapons, funded with hundreds of millions of dollars, launch attacks against a country, its people, its embassies and other outposts, are not just “criminal acts,” they are Wars.

Posted by: JamesRaider | November 19, 2009 10:04 PM | Report abuse

What's all the up-roar about? President Obama has already assured us that they(the defendants) will be(presumed innocent) found guilty and be legally exicuted (murdered)after a fair trail by an impartal jury. Nothing wrong with this picture af American justice!! Is this the hope and change facing the rest of us? Declared guilty before trial? Networks suppresed by the White House for critizing them? What next? Re-education camps? Political attacks on private citizens?(Joe the plumber)The use of IRS to harass critics? Nixon would be proud.

Posted by: MarxBro | November 20, 2009 10:10 PM | Report abuse

CardFan, while I agree with you that Gerson is undeniably a preposterous, right-wing hack, there is no way that he is more illogical or nonsensical than Charles Krauthammer. That is simply not possible for anyone, with perhaps the sole exceptions of Sarah Palin and the Fox "News" crew.

Posted by: chert | November 23, 2009 3:03 PM | Report abuse

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