The decision by Eric Holder to try the 9/11 defendants in New York City is puzzling on several counts. It certainly isn’t clear who is supposed to benefit from this, in either practical or political terms. The decision does not appear to have been thought through with any substantive analysis.

First of all, it’s been presented to the public as having been “Eric Holder’s decision.” Really? Why is that? This is arguably among the highest-profile legal proceedings in the country’s history, with far-reaching implications as to how we’ll conduct similar future terror trials. Public safety, national security, and America’s world image are all impacted directly. However, the decision to bring Khalid Shaikh Mohammed to NYC for civil trial has been put forth as coming not from the President himself, but from his top legal officer. President Obama is sending the message that either he couldn’t make the call himself, or that he was unwilling to take the political backlash if such a decision proved unpopular. For those who view the President as weak and indecisive on terror, outsourcing the decision to Holder just makes Obama look that much weaker, with no discernible political upside.

The concept of what, exactly, constitutes torture is also at the heart of this case. Waterboarding is a very harsh and unpleasant procedure, to be sure, but U.S. Navy SEAL recruits undergo the same procedure as part of their training. The procedure does not involve any permanent injury or disfigurement and is not life-threatening. It therefore fails the classic definition of ‘torture.’ Yet driven largely by the Left’s desire to discredit all policies practiced by the Bush Administration and in a transparent attempt to curry favor with the Liberal European governments, the U S. has de facto agreed that waterboarding is now considered “torture.” From a purely legal-proceeding standpoint, can any admission of guilt elicited from KSM by illegal means (waterboarding/torture) be admissible in a civilian Court of Law? A defense attorney will argue that such evidence be suppressed, much like any physical evidence garnered without a search warrant is similarly suppressed. What is an NYC Court Judge to do? Did Holder think this through?

Most of the pundits’ analysis has focused on the vague, ill-defined theory that putting KSM on trial in a civilian court somehow puts the Bush Administration on trial as well. Unlike the skirting of internationally-accepted civilized behavior that the Bush Administration sanctioned by their use of questionable techniques performed in the shadows of the law, the Obama Administration would demonstrate to the world that, indeed, a New Day has dawned in America. Our country is once again at the forefront of righteous actions, a model of correct behavior for the entire world to emulate and envy.

The political risk, obviously, is if KSM and his colleagues somehow escape the ultimate verdict. Many observers say that simply giving the defendants a highly-visible public trial forum on which to grandstand and denounce our country and its legal system will be the victory they seek. In addition, it remains to be seen how effectively the U.S. Justice System can keep vital intelligence-gathering information and methods from becoming public during the defense and discovery portions of the trial.

In any event, it’s difficult to make a strong risk/benefit analysis for the Obama Administration on any basis. The benefit seems to be to discredit the Bush Administration in retrospect and thus gain further acceptance of Obama’s efforts to portray himself as a “new” voice of American leadership. And what are the direct benefits of such a “victory”? If Obama comes across as fair, even-handed, and willing to consider all views—in other words, he comes across in the best possible light that he could hope for—what is the political/policy payoff? Will Russia then cooperate on sanctions against Iran? Will China suddenly sign on to economically self-restrictive Global Warming agreements? Will Hugo Chavez all of a sudden stop brewing mischief to our south? Will NATO send thousands of additional combat troops to Afghanistan? On the home front, will this cause huge swaths of wavering Independents to suddenly flock to the Democrats’ side in the next election?

Other than a smug satisfaction Obama might glean from supposedly showing up his predecessor, it’s very difficult to understand this decision from any angle—whether it’s domestic politics, national security, or international relations.

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