According to The Associated Press, Eric Holder will announce later today that Khalid Sheikh Mohammed and four other 9/11 defendants will be brought from Guantanamo to New York to stand trial, in a real criminal court, for the crimes they are accused of committing. This is a decision I really wish I could praise, as it's clearly both politically risky and the right thing to do. An open criminal trial under our standard system of justice, accompanied by basic precepts of due process, is exactly the just and smart means for punishing those responsible for terrorist attacks. It announces to the world, including the Muslim world, that we have enough faith in our rules of justice to apply them equally to everyone, including to Muslim radicals accused of one of the worst crimes in American history. Numerous family members of the 9/11 victims have long argued that real trials for the accused perpetrators are vital to providing real justice for what was done -- I expect to have an interview later today with one of those family members -- and holding the trial in New York, the place where 3,000 Americans died, provides particularly compelling symbolism. So this component of the Obama administration's decision, standing alone, is praiseworthy indeed. The problem is that this decision does not stand alone. Instead, it is accompanied by this: So what we have here is not an announcement that all terrorism suspects are entitled to real trials in a real American court. Instead, what we have is a multi-tiered justice system, where only certain individuals are entitled to real trials: namely, those whom the Government is convinced ahead of time it can convict. Others for whom conviction is less certain will be accorded lesser due process: put in military commissions, to which most leading Democrats vehemently objected when created under Bush. Presumably, others still -- those who the Government believes cannot be convicted in either forum, will simply be held indefinitely with no charges, a power the administration recently announced it intends to preserve based on the same theories used by Bush/Cheney to claim that power. A system of justice which accords you varying levels of due process based on the certainty that you'll get just enough to be convicted isn't a justice system at all. It's a rigged game of show trials. This is a point I've been emphasizing since May, when Obama gave his speech in front of the Constitution at the National Archives and explained how there were five different "categories" of terrorism suspects who would be treated differently based on the category into which they fell: That the Obama DOJ is now explicitly picking and choosing different levels of due process in the very same announcement -- we can give that defendant a trial because we know we'll win, but that one over there needs to go to a military commission because we're less sure -- highlights how manipulative this "justice system" is. Former Air Force lawyer Morris Davis was the Chief Prosecutor of the Guantanamo Military Commissions system during the Bush years and resigned in 2008 to become one of its leading critics. Although he still believes that military commissions are a viable option for detainees captured on an actual battlefield -- and even believes the President has the right to detain terrorism suspects indefinitely with no trial -- he made the same point last week in a Wall St. Journal Op-Ed about the practice of picking and choosing the system of justice one receives based on how likely the state is to win: Obama is certain to be bombarded with all sorts of right-wing idiocy and fear-mongering as a result of his decision to bring 9/11 defendants into the U.S. in order to give them trials. Doing that is clearly the right thing to do: trials and due process is how civilized countries treat people who are accused of engaging in terrorism. Given how Democrats and Republicans will talk about this decision, media coverage will almost certainly fixate on the narrow question of whether (a) 9/11 defendants should be given trials in the U.S. or (b) we're all now Endangered because these Omnipotent Monsters are being brought into our communities (in handcuffs, shackles, and maximum-security prisons). The AP article already includes this preview of the inane attacks on Obama certain to come: In a just-posted New York Times article, Charlie Savage also notes that bringing an accused terrorist of Mohammed's notoriety to the U.S. for trial is unprecedented and likely to provoke intense political controversy. In that "debate," I'm squarely on Obama's side, as is any person who believes in the most basic Constitutional precepts. But the more consequential impact of Obama's decision is likely to be overlooked: we're now formally creating a multi-tiered justice system for accused Muslim terrorists where they only get the level of due process consistent with the State's certainty that it will win. Mohammed gets a real trial because he confessed and we're thus certain we can win in court; since we're less certain about al-Nashiri, he'll be denied a trial and will only get a military commission; others will be denied any process entirely and imprisoned indefinitely. The outcome is pre-determined and the process then shaped to assure it ahead of time, thus perfectly adhering to this exchange from Chapter 12 of Alice in Wonderland: How is that remotely just or fair under any definition of those terms? As Davis wrote: "We need to work to change the negative perceptions that exist about Guantanamo and our commitment to the law. Formally establishing a legal double standard will only reinforce them." There's nothing "pragmatic" or "moderate" about creating a multi-tiered justice system where only some people get trials; it's both counter-productive and profoundly unjust. *** In his Press Release, Eric Holder says his decisions today were "based on a protocol that the Departments of Justice and Defense developed" whereby he "looked at all the relevant factors and made case by case decisions for each detainee." In other words, there's no categorical determination driving the process (e.g., all those who attack military targets get commissions and all those who attack civilian targets get trials). To the contrary, federal prosecutors choose, in their sole discretion, the level of due process each defendant gets (including "none" -- as in: indefinite detention with no trial), and Holder himself emphasized that "it is important that we be able to use every forum possible to hold terrorists accountable for their actions." There's supposed to be one justice system for everyone -- not multiple ones from which prosecutors can pick and choose based on assurances of ongoing imprisonment. Highlighting how dangerous this is, the DOJ's investigation of al-Nashiri was originally classified as a standard criminal case, but -- as his counsel pointed out today -- he was assigned to a military commission because there simply isn't sufficient evidence to convict him in a real court. Vividly illustrating the perverse mentality behind all of this, here's a question asked today of President Obama by AP's Jennifer Loven: Apparently, we're only supposed to give trials to people if we can assure in advance that it won't "result in an innocent verdict." Jennifer Loven -- and many of her media colleagues -- seems to yearn for the U.S. to be a lot more like North Korea. And for those of you who favor what Obama did today, I have two questions: (1) are you in favor of allowing serial murderers and child rapists to go free if the evidence against them is "tainted," or should special commissions be created to ensure their conviction, too; and (2) did you defend the Bush administration's use of military commissions on the same grounds that you're defending Obama today? The article is a few days old, we've seen how much the Right has been running around like chickens with their heads cut off screaming that we're all endangered now by trusting our justice system. Karl Rove said the decision puts us in the most dangerous position we've been since 9/11. McCain, Giuliani, they're all coming out of the woodwork to condemn this. They charge a variety of senseless claims that amount to: "Islamic terrorists are X-Men, they cannot be held in prisons or given trials like a normal human" [despite the fact that 195 terrorists have been tried in US civilian courts since 2001 with a 91+% conviction rate and all are sentenced to supermaximum security prisons from which no one has ever escaped]; "this will embolden terrorists and give them exactly what they want" [despite reports now from Taliban-captured David Rohde, Gen. McChrystal, and Pentagon's own task force concluding Gitmo, torture, and a lack of trials were the biggest motivating factors increasing terrorism since 2004 and reformed former extremists explaining how it was those protesting for their rights, the ACLU, Amnesty International, etc. whose advocacy caused them to question their jihad and stop demonizing Americans]; "They weren't read their miranda rights, maybe they were tortured, so they could get off and then they'd be free to attack us again!" [despite the fact that Holder has asserted he has the right to "preventitively detain" any alleged terrorist for any reason and that he will, in fact, do so even if they are given a trial first and acquitted]; and "anyone accused of terrorism by the government are automatically and unquestionably guilty by virtue of allegation alone" [despite the fact that more than 70% of all detainees held at Guantanamo were eventually cleared of any wrongdoing and released without charges and among the 30% we're still holding, 28 out of 33 cases before military tribunal have found the defendants not guilty]. It is no less than absolute contempt for the Constitution, rule of law, and justice system that drives this, aided along by exploitation of base fears. What's nearly as bad though are the many Obama supporters claiming we're now embracing the rule of law and justice we'd so thoroughly disregarded during the Bush years, when really this amounts to no more than a symbolic show trial with most others either tried via military commission or, worse still, "preventitively detained" without any trial for the rest of their lives if there's no evidence against them. This turn of events and the system devised, despite America's courts having proven time and again they're more than equipped and sufficient to try and convict terrorists (as are the courts in Spain, the UK, Indonesia, Israel, etc.), is a really stunning and direct rejection of our justice system. Thoughts?