More Regarding Trials in which "Failure is not an Option"

Now, it seems, our poor President is being advised by his handlers to abandon the idea of trying the 9/11 defendants in District Court in New York, and instead to do so before a military tribunal.   This may mean we will be deprived of the opportunity to demonstrate to the world our respect for the rule of law by holding the trial his confused Attorney General proposed would be one in which "failure is not an option."

One may expect Mr. Obama will be chastized by those on the left if he succumbs to this latest advice, but it will be difficult to condemn him for not holding what could only have been a show trial if Mr. Holder's characterization of the planned proceedings was accurate.  If the result of such a trial is in any case preordained, why not dispense with what could only have been a very expensive display of hypocrisy?  But, perhaps the administration was not aware of the expense which would be involved in holding such a trial in Federal Court--how else account for the fact it was stunned to learn that the locals were not looking forward to footing the enormous bill?  Perhaps it was even unaware that it would appear hypocritical in insisting on a trial which could have only one outcome.

The simple fact is that there is no reasonable basis on which to assume there is even the slightest chance these defendants will be found not guilty.  And therein lies the problem; a very serious problem, I think.

I consider myself a ciceronian, but am not unaccepting of the fact he had many faults.  Anyone familiar with the career of Marcus Tullius Cicero knows that he faced condemnation (primarily after the fact, of course) for putting Roman citizens to death without trial in the case of the famous conspiracy of Catalina.  And there is reason to believe he felt remorse for doing so to the end of his life.

Of course, he did not do so by his own unilateral order.  He was careful to seek and obtain approval of the Senate, and that approval was nearly unanimous.  He was not a Sulla, nor for that matter was he one of the ruthless triumvirs who condemned him to death.  The guilt of those conspirators detained was unquestioned, even admitted.  There was a fear that an army of rebels would descend on Rome if trials were held--there was no time, it was felt, for trial, as there was an immediate danger.

Yet, there was something awful about executing or otherwise punishing the conspirators without trial, which, granted, would have been a very different proceeding then.  And there still is, I believe. 

We are not even considering the possibility of dispensing with a trial, however.  A military tribunal may not provide a trial of the kind available in Federal District Court, but it can provide certain due process protections, and an opportunity to respond to the charges.  Neither the President nor the nation must accept Cicero's burden in this case.  But we are foolish if we feel that the kind of proceeding to be held will make any difference where the result is concerned.  That is something we simply must accept.