NY TIMES
Editorial:  The K.S.M. Files
Published: April 14, 2010
Source: http://www.nytimes.com/2010/04/15/opinion/15thu1.html?th&emc=th

McCain/Lieberman Submit Legislation to Legalize POLICE STATE in America.

Watching Attorney General Eric Holder struggle on Wednesday to answer senators’ questions about the detention and trial of terrorism suspects made us nostalgic for the old days — back in 2009 — when the United States was making progress toward cleaning up the mess President George W. Bush made with his detention policies.

The Pentagon was working on closing the prison at Guantánamo Bay, Cuba. The flawed military tribunals were improved, at least a little. And the Justice Department announced that the accused mastermind of 9/11, Khalid Shaikh Mohammed, would be tried in federal court.

All of that has stopped — because of Republican fear-mongering, administration blundering and Democratic not-in-my-backyardism. And unless President Obama grabs hold, things could get far worse.

Senators John McCain and Joseph Lieberman have a bill that would require the military detention and trial of anyone accused of any terrorism-related crime, including American citizens. That is the stuff of police states.

So the White House has been talking to Senator Lindsey Graham of South Carolina, a former military prosecutor and a rare sensible voice on that side of the aisle. He supports closing Guantánamo and moving the prisoners to a federal prison. He wants to preserve the role of federal courts — specifically for cases like the would-be Christmas Day bomber, who was arrested for trying to attack civilians; for American citizens; and for foreigners charged with supporting terrorist groups financially.

In return, he wants Mr. Obama to try Mr. Mohammed in a military court and back his proposal to create a new court system for suspected terrorists. It would permanently embed in law detention powers that a president properly has only in time of war.

Even if the White House loses on the Mohammed trial because of its poisonous politics, President Obama has to insist on maintaining the long proven system of trying terrorism cases in federal court. People captured in battle may, of course, be held as military prisoners.

There are close to 200 Guantánamo inmates. Some should be released, and some should be tried in federal or military courts. The administration says 48 are a danger but cannot be tried because the evidence is too thin or fatally tainted by abuse and torture.

Mr. Bush created that problem, and it needs to be fixed. But the bigger question is how this nation will deal with terrorism suspects in the future.

The Justice and Defense Departments properly declared last year that the presumption will be that suspected terrorists will be tried in federal courts, which have handled hundreds of these cases. Mr. Holder then announced the Mohammed trial would be in New York.

Unfortunately, Mr. Holder failed to lock in the support of New York’s mayor or police chief or its Congressional delegation. Mayor Michael Bloomberg protested about security and inconvenience, and Senator Charles Schumer and Representative Jerrold Nadler jumped on board.

While Mr. Holder blew the politics, he was right about the policy. Apart from the principle, the military tribunals don’t have the experience, rules or qualified lawyers for such a case. Although Mr. Holder said on Wednesday that a federal trial for Mr. Mohammed is still possible, the poisonous politics, on display at the hearing, make that a remote possibility. If the administration insists on it, Republican lawmakers will seek to bar the use of federal funds for terrorism trials and timorous Democrats will go along.

Trying Mr. Mohammed in a military court is at least explainable by the attack on the Pentagon. But Mr. Obama should not “reconsider” the prosecutorial code and remove the presumption of federal jurisdiction over acts of terrorism. That would continue the unjust system that has made other countries reluctant to turn prisoners over to the United States, elevates criminals to the status of warrior and serves as a recruiting tool for Al Qaeda.