Posse comitatus?

The latest from Jane Mayer is definitely worth your time.

Holder told me that he was frustrated by much of the criticism over the handling of Abdulmutallab. “What we did is totally consistent with what has happened in every similar case” since 9/11, he said. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.” Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal. Even so, critics such as Krauthammer were denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a senior national-security official in the White House put it, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit, and take someone away without court oversight?”

According to Kate Martin, the director of the Center for National Security Studies, in Washington, the military can’t simply grab suspects inside the U.S. and hold them without charge or a hearing. “It violates the Constitution, which extends to everyone inside the U.S.,” she said. “You can’t be seized without probable cause. You have the right to due process, and to a trial by a jury of your peers—which a military commission is not.” Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,” which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University’s Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees—all of whom were apprehended abroad—were convicted in military commissions at Guantánamo. The makeshift military-commission system set up by Bush to handle terrorism cases has never tried a murder case, let alone one as complex, or notorious, as that of Khalid Sheikh Mohammed, who will face the death penalty for the murder of nearly three thousand people.

The Bush Administration obtained life sentences in the criminal courts for two terror suspects arrested inside the U.S.: Richard Reid, the so-called shoe bomber, and Zacarias Moussaoui, who was planning a second wave of plane attacks. (Reid was read his Miranda rights four times.) When the Bush Justice Department obtained these convictions, the process was celebrated by some of the same people now criticizing Holder. Giuliani, after the Moussaoui trial, said, “I was in awe of our system. It does demonstrate that we can give people a fair trial.”

The hypocrisy is so thick you can smell it oozing from Giulini's pores. As Holder says later, if Giulini was still a federal attorney he'd be demanding they try the guy in civilian court in his district. But then there's this.

Holder tried to address his critics with lawyerly detachment. Dick Cheney had equated Holder’s approach to handling terrorism with giving “aid and comfort to the enemy”—the legal definition of treason. Holder said of Cheney, “On some level, and I’m not sure why, he lacks confidence in the American system of justice.” He added that he had seen documents making clear that Cheney’s office was the driving force behind the Bush Administration’s most controversial counterterrorism policies, especially those sanctioning brutal interrogations. He said of Cheney, “I think he’s worried about what history’s judgment will be of the role that he played in making decisions about everything from black sites to enhanced interrogation techniques.” Holder said that he doesn’t know Elizabeth Cheney, but noted, with a laugh, “She’s clearly her father’s daughter.”

He may note that with a laugh, but what he's described regarding Dick Cheney sound like the grounds for arrest.