The strange thing about the Obama administration’s decision to hold these civilian al-Qaeda trials is that the project is flawed even based on the premises of its staunchest defenders: They talk about due process and the rule of law, but the trials can’t possibly provide anything close to the level of objectivity that applies in an ordinary criminal-law setting. There is no way the defendants will get an impartial jury in New York, and there is no way the government will actually release the terrorists if they are acquitted. Thus the courtroom proceedings in Manhattan will be, in a very real sense, show trials. They are designed purely for PR purposes, so that the Obama administration can pay lip service to the ideal of due process while implicitly rebuking the Bush administration for failing to respect the rule of law.
Meanwhile, it is the Obama administration that is truly making a sham out of the rule of law, by politicizing the trial process and pretending that these enemy combatants will be getting normal, neutral, dispassionate trials, as if the larger strategic context of the War on Terror will not affect the judge, the jury, or the actions of the government, which is sure to retain custody of the defendants in the off chance they are acquitted.
This reflects the fundamental unseriousness of the Obama administration in the face of terrorism. We saw the same thing with the foolish announcement that Gitmo would be closed by January, which was the first iteration of the administration’s fantasy-land effort to sidestep one of the core dilemmas of the post-9/11 world: We have a significant number of detainees whom we know with operational certainty to be dangerous terrorists, but, for various reasons, we can’t prosecute or convict them according to normal procedures. This is another way of saying that there is no way we can prosecute the War on Terror while providing the full panoply of ordinary due-process protections to enemy combatants. And no amount of hope can change this reality.