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By deciding to try an admitted terrorist in federal court, Eric Holder is putting American democracy -- and us -- to the test.  

Democracy -- the kind people know in too many other places -- simply means letting the people go to the polls to choose their leaders. But the United States is not just "a democracy"; it's a liberal democracy (that is, one that specifically protects people from government, rather than the other way around) and a constitutional democracy (one in which the precepts and laws are clearly spelled out and binding on everybody from the President to the trash collector).

Our American form of democracy is not about policy but about process: it's about how we make our decisions, under what rules, guided by what principles, committed to what values. The Attorney General has now decided to see whether or not we really believe those words we so casually mouth when we salute the American flag, recite the pledge of allegiance, sing the Star Spangled Banner. We will test whether pinning a flag to a lapel is a paean to American principles or merely to base chauvinism.   

Here's the thing: we hold ourselves out to be a nation fully committed to the rule of law. That is no accident. America's founders were familiar with the power of arbitrary rule. They knew first-hand what it was like to have rulers toss opponents into jail and hold them there forever with no opportunity to defend themselves or to even know what it was they were being accused of. They determined that in America, unlike what Donald Rumsfeld later called "old Europe", people would at least be given an opportunity to try to defend themselves. Perhaps they would then end up in a cell for life or at the end of a rope, but the goal was to ensure that they were guilty before punishment was imposed.

This old-fashioned idea -- the right to defend oneself, no matter how heinous the crimes one is suspected of committing -- is at the root of some of the most important principles guiding American life.  Consider the freedom of the press. In colonial America, it was a crime to bad-mouth a colony's monarch-appointed governor. When New York publisher John Peter Zenger was taken to court for doing just that, a jury decided that guilty or not (he was) no journalist was going to get tossed into the clink for speaking ill of a government official. Want to know why a member of Congress cannot be punished for something he or she says on the House or Senate floor, or why they can't be arrested (except for treason, felony, or breach of peace) while en route to their official duties? Because rulers in the past knew how to get pesky opponents out of the way. So our Founders established a whole set of procedures to ensure that law, not arbitrary rule, would become the American way. The rules we live by today were put in place by a people who knew that the risk of following rules was ultimately less than the risk of capricious command.

Fast forward to the case of Khalid Sheik Mohammed, the man who claims credit for the attacks on September 11, 2001. Despite the Bush Administration's apparent comfort level with holding terrorism suspects forever without charges, the Constitution does not permit such an outcome. Except in the cases of invasion or civil war, the federal government is specifically prohibited from suspending the right of habeas corpus, the most important of all individual rights and the greatest protection against arbitrary government rule. At some point, therefore, Mr. Mastermind was going to face trial. The question was where and under what circumstances. Because military commissions do not afford the level of in-court procedures available in government courtrooms, and because Mohammed, like Timothy McVeigh and Terry Nichols attacked a civilian, rather than a military, target, the constitutionally proper venue for his trial was a federal courtroom.

This raised the question not of constitutional propriety but about such ancillary matters as whether he could be held in an American city, American cells, and American courts without a risk of escape. Whether an American judge could be counted on not to inject his or her own anti-American bias into the proceedings.  Whether or not the nature of American trials would allow Mohammed a stage upon which to perform. Big questions, and fair.

So high are the stakes that one noted commentator, Mark Shields, who is thoughtful and well respected, believed the decision should have been made by the President, not his underling at the Justice Department. But in fact the opposite is true: Mr. Obama is the chief executive but even though Eric Holder was appointed by Obama, he is not the President's Attorney General, but America's (a distinction the hapless Alberto Gonzales failed to understand). In fact, the selection of Bob Bauer to replace Gregory Craig as the chief White House counsel has been criticized, properly, because Bauer is a Democratic (read, political) insider and the last thing we need in the office of legal counsel down the hall from the President is another John Yoo, bending law to suit presidential preferences. Eric Holder knows that this is not a political call, it is a legal and constitutional call, and there, at least until the Supreme Court steps in, the buck stops with him.

As to the questions raised: both mass murders and leaders of vast, heavily-armed criminal enterprises have been tried and convicted in American courts. Our cells hold vicious and charismatic and wily men. Our courts have not been founding wanting. Yet many are fearful. Were the Israelis afraid to put Adolf Eichmann -- responsible for far more deaths than Mohammed -- on trial in Jerusalem? America itself was not afraid to put Ramzi Yousef and other terrorists who carried out the 1993 World Trade Center bombing on trial in New York (they were convicted).

Perhaps the worst fears of some will be realized; perhaps the trial of Khalid Sheik Mohammed will be disrupted or disruptive; perhaps he will be set free. The chances are slim indeed, but if one imagines worst-case scenarios, one must still ask whether that "worst case" is worse than turning our backs on our system on laws and the process guarantees of a free society. On that one, count me with Eric Holder.

As a guest on an NPR talk show, discussing the election results in New York's 23d Congressional District, I was asked to offer my perspective on the likely impact of the challenge mounted by "tea party" conservatives against the woman selected by local party leaders to run as the official Republican nominee.  A theme ran through the conversation and through the calls from listeners: the Republican nominee was "a moderate"; the Republicans who opposed her were part of a disturbingly right-wing fringe; and the challenge was an ominous portent of a looming intra-party civil war aimed at driving responsible Republicans from the party.

Repeated often, such themes take on a life of their own.  Over the past week, I have given speeches on college campuses from South Carolina to New Jersey and heard the same refrain over and over.  As one who has been openly critical of the intellectually barren right and its unforgiving litmus tests, I felt a certain affinity with those who feared for what such an insistence on undeviating "purity" might mean. I've worried about that myself.

And yet at some point one must be fair. So three observations:

First, while it is true that many on the right (and on the left, but more on that later) demand conformity to their views, with disdain and hostility toward "moderates," in this case, the uprising was not against a moderate.  Dede Scozzafava ain't no Olympia Snowe, she's not a Nancy Johnson, not another Chris Shays.  There are party members who catch some grief within the ranks because they are less conservative than many of their Republican colleagues, but Scozzafava is not one of them. She is not a moderate; she's a liberal, well to the left of many members of the House Democratic Caucus. While that is not a knock (being a liberal is not a sin) it's not thoroughly inappropriate for a political party--if we must have them--to draw the line somewhere; otherwise party has no meaning at all.  Those who believe parties serve a purpose (something I seriously doubt) are within their rights to believe that while one may differ on several issues, there is, at some point, such a thing as too much.  It may be true that Republican conservatives intend to drive out their own moderate voices, but Scozzofava is not a good test case.

Second, while the Conservative Party candidate, Doug Hoffman, was indeed supported by some certifiable loonies--Rush Limbaugh and Glenn Beck come to mind--they were not the only people who concluded that Hoffman was more representative than Scozzafava of the Republican perspective.  Limbaugh, Beck, Sarah Palin, and others drew much of the attention (to this day I know very little of what Hoffman himself stood for; all the news was about comments by his supporters) but Tim Pawlenty, while he is a conservative, is no crazy; he has been a successful and highly-regarded governor; the same is true of Tom Cole, the former chairman of the National Republican Congressional Committee.  Perhaps if the Palins, Limbaughs, and Becks had kept their distance and kept their mouths shut, and had just let the campaign play out, with Scozzafava's views becoming more apparent over time, the 23d would have elected Hoffman who would today be caucusing with Republicans.

Finally, and most disturbing in retrospect, is the way in which a battle between Republicans over a party nomination was considered a sign of malignancy and impending party dissolution.  Such struggles are not new within the GOP (conservative Jeff Bell knocked off incumbent Republican Senator Clifford Case in a primary; Republican Senator Charles Goodell was knocked off by conservative James Buckley; Senator Barry Goldwater's nomination for President came after a furious intraparty struggle between Goldwater conservatives and the more liberal Rockefeller-Romney-Scranton wing of the party) and the GOP survived each of those confrontations, just as it later survived the 1976 convention showdown between Ronald Reagan and Gerald Ford. It happens. (Full disclosure: when I was first elected to Congress, it was after a hotly-contested Republican primary between one side that was considered more conservative and one that was thought to be less so, and both sides, mine and my opponent's, brought in noted speakers from outside the state in support of our candidacies; in the years that followed, the party grew stronger, not weaker).

But that lack of historical perspective is not what most bothers me.  It is that many of the voices who have used the Hoffman-Scozzafava race as a hook to accuse the Republican Party of intolerance for dissent are likely the same people who cheered on Ned Lamont when he ran against, and defeated, fellow Democrat Joe Lieberman in Connecticut and howled in anger when Lieberman chose to continue running, as an independent, rather than simply disappearing as they hoped.  Some were probably among those Democrats who refused to allow Pennsylvania Governor Bob Casey to speak at a national convention because he was pro-life, or who cheered this year when MoveOn.Org raised more than $3.5 million to run primary challenges against Democrats who blocked passage of a health care publc option, and threatened campaigns to remove Democrats in Congress from their committee chairmanships if they didn't play the game.  Perhaps these assaults against the GOP come from liberals who loved MoveOn's attacks on Democratic Senators Blanche Lincoln and Mary Landrieu, or FireDogLake.Com's campaign to unseat Harry Reid if Reid did not come through as they hoped in the health care debates.  Like Howard Dean who insisted that he alone represented the Democratic wing of the Democratic Party, Democrats have shown the same capacity for demanding a toe-the-line conformity they now find so appalling among Republicans.

Let there be no accusations that I embrace the anti-Scozzafava campaign; as I have written on this site before, there is plenty to criticize in Scozzava's selection, in her campaign, and in the effort by outsiders to overturn the decision of local party officials, and probably in many other aspects of the Battle of the 23d.  But it is important to treat the issues raised more objectively than has been the case to date. Perhaps that is a conclusion with which Joe Lieberman might have cause to concur.

Photo Credit: Flickr User clarkmackey

 

In "Fool," his absurdist Shakespearean knock-off, Christopher Moore begins with a who's who: there are Lear and Cornwall, Kent and Regan, Goneril and the Witches Three. And a ghost. As Moore puts it, "there's always a bloody ghost.

There is always, it seems, a ghost: a ghost who hovers, spooks, warns, and wraps its spectral arms around the unfolding action, foiling the players' plans and driving the story straight toward a cliff.

In America, that ghost is the deficit.  Or if you prefer to think big and long-term, the national debt.  We've long since crossed the line between millions and billions and trillions, with an annual deficit well over a trillion dollars and the accumulated debt nearly $12 trillion.  Where is it that this particular ghost--no cartoon--is driving us?

Donald Rumsfeld, defending his Iraq War decisions, argued that one goes to war with the army one has, not the army one might wish for, and there is considerable doubt whether we can now come up with the cash to build the army he would have liked.  Up-front costs of proposed health care legislation cause conservatives - and not only conservatives - to gag.  With mounting needs for infrastructure repair, wars that go on and on, and an out-of-control Wall Street sucking up billions of taxpayers' dollars (hey, somebody has to pay for the bonuses), the current national deficit disorder is not a deficit of attention but a heightened attentiveness to a financial shortfall that constrains current capacity and paints a Shakespearean gloom over the future.

The Congress, which has its own attention deficit disorder, often forgets that it has promised, repeatedly, to bring spending under control. Rules requiring a dollar of spending reduction for every dollar in spending increase, like those famous "sunset" provisions designed to prevent programs from living forever, are simply ignored when it comes time to make hard choices. Like the majestic redwood tree, government knows but one imperative: to grow.

This is not to pass judgment on any particular proposal but to suggest that it is the way of children to pretend that one can have it all. If one wishes to argue that a national health care plan is a moral imperative, he or she must be willing to suggest that something else on the table is less so and can be cut back to meet the moral imperative. If one argues that the army we have is inadequate for a nation that must be prepared to combat not only the Iraqi insurgency, al Qaeda, and the re-energized Taliban, but must also be capable of countering emerging threats from Iran, North Korea, or any other hostile quarter, one must also be resigned to dropping another program to a lower spot on the priority list.

I found during my years in Congress that such choosing is not something many are good at. Liberals, maintaining solidarity, fought against cuts, or even holding the line, on a whole host of projects they considered important responsibilities of government. Conservatives did the same thing, with only the list of priorities differing (conservatives were far more likely to complain about the deficit while liberals were too inclined to dismiss it as money we owed to ourselves, but many conservatives were hard-pressed to find any military-related expenditure or business-subsidy program they found expendable). The result: money-saving possibilities become the fuel for ideological and partisan battle rather than impetus for grown-ups to sit down together and search for savings in programs across the board.

Here's the thing: ghosts may seem wispy and ethereal and the temptation is to ignore them. But there are some that we ignore at our own peril. Shakespeare knew it. Many economists know it, too. It's time our political leaders took this ghost seriously because this is not Casper we're dealing with.

Photo Credit: Wikimedia Commons and Flickr User blair christensen