Lithwick's latest, on KSM, is not just silly but pernicious

Dahlia Lithwick is the least reliable legal pundit I've ever run across. Consider this:

Today, by ordering a military trial at Guantanamo for 9/11 plotter Khalid Sheikh Mohammed and his co-defendants, Attorney General Eric Holder finally put the Obama administration's stamp on the proposition that some criminals are "too dangerous to have fair trials."

Stop and ponder this bold assertion.

Then consider that the military commission statutes which will control KSM's trial were passed twice — the second time to add additional procedures favorable to defendants in response to an intervening SCOTUS ruling — by overwhelming majorities in both chambers of two different Congresses (in 2006 and 2009) under two different presidents.

Among those voting for the Military Commissions Act of 2009, under which KSM will be tried, were Democratic Senators Daniel Akaka, Max Baucus, Evan Baye, Barbara Boxer, Sherrod Brown, Roland Burris, Maria Cantwell, Christopher Dodd, Richard Durbin, Diane Feinstein, Al Franken ... well, you get the picture (and I haven't gotten past the letter F in the Senate even after skipping several). In the House, 237 Democrats, including Nancy Pelosi, voted for it. The additional protections it added were so generous to defendants, in fact, that 132 House Republicans and 28 Senate Republicans voted "nay" — even though it was part of a defense appropriations bill. And of course it was signed into law by President Barack Obama.

For Lithwick's assertion to be true, all those Congress-critters had to be very devoted to unfair trials. They can't pass a damn budget, but if we believe Dahlia, they can band together hand-in-hand, in overwhelming numbers — twice — to create and revise a fundamentally unfair judicial system.

Similar devotion to unfair trials, it would seem, must be attributed to Barack Obama and Eric Holder. Of the former, she bitterly claims to have learned that "there is no principle he can't be bullied into abandoning." So perhaps Obama isn't devoted to unfair trials, but is just cravenly enslaved to those who are. Does that make Obama better, or worse, than those to whom he's "capitulated"?

Of course, the more fundamental stupidity of Dahlia's assertion is its assumption — an emphatically, unarguably false one — that KSM and his co-defendants are mere "criminals." They aren't, of course, and it's not just silly but pernicious to pretend otherwise.

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"Fairness," with respect to trials, is not a binary status, either on or off. It's a continuum.

Compared to the rest of the world and all of history, U.S. civilian criminal courts provide more procedural and substantive protections for defendants than any other court system — and by a wide margin. If we presume that nothing less can be "fair," then all of the civilian judicial systems in the rest of the world are "unfair," and have been for all of history.

And in fact, as Lithwick damn well knows — she's not stupid, she's calculating — the military commission trials in fact afford the defendants with legal safeguards substantially more favorable to them than if they were being tried in the regular civilian criminal courts of any other country in the world (save only, perhaps, and then in only certain respects, the U.K. and some of its former colonies, including Lithwick's native Canada). Yet she writes:

Every argument advanced to scuttle the Manhattan trial for KSM was false or feeble: Open trials are too dangerous; major trials are too expensive; too many secrets will be spilled; public trials will radicalize the enemy; the public doesn't want it.

Easy to say, impossible to support, and dead wrong on every count. Any one of these reasons could properly have justified Congress in turning the "fairness dial" back down from 11 — where it's set in the U.S. civilian courts because we so value the civil liberties of our own people that we'd rather see many criminals go free to prevent one wrongful conviction — to a mere 10.

In particular, the "secrets that would be spilled" aren't whisperings between teenaged girls at a slumber party. They include the identity of sources who would be caught and beheaded. They include methods of fighting terrorism that have prevented another 9/11. Lithwick dismisses them in six words: so blithe, yet so very dangerous.

For comparison, KSM will in almost all respects be getting the same protections and rights we give to our very own servicemen and -women in military courts martial. Ponder the irony of that. I shall await Lithwick's next article, which I presume will excoriate the Uniform Code of Military Justice — which Congress adapted to create the military commissions system — and I expect to see her picketing outside Fort Leavenworth later this week.

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KSM famously declared when he was captured: "I'll talk to you guys after I get to New York and see my lawyer." Another irony, of course, is that he will in fact have fabulous lawyers, paid by the very government of the very country he still wishes to destroy, and yet ethically bound to do their best to get him acquitted or, failing that, to mitigate his punishment.

The truth is that nothing would ever satisfy Dahlia Lithwick and her ilk. Nevertheless, KSM will get his trial, whether she's satisfied, and whether she lies about it, or not.

But it won't be in New York.