Those heady days when hope and change were in the air seem like light years and not two years ago. And while President Obama has made good on sizeable chunks of his agenda, there has been little change and what hope there was has been further undermined by the decision this week to reverse field and order a military trial at Guantánamo Bay for 9/11 plotter Khalid Sheikh Mohammed.
For someone who has followed closely the prosecution of the so-called War on Terror, the decision is shocking not merely because Attorney General Holder has gone back on his word. The military tribunal system has been much improved under the Obama administration and the chances of Mohammed getting a fair trial are considerably better than during the dark days of Bush Era kangaroo court tribunals.
What grates -- no, what angers -- is that the decision to try Mohammed in a civilian court, applauded by civil libertarians such as myself and greeted with outrage by Republicans and many Democrats alike, was based on the notion that his prosecution and trial belonged in the federal court system, where he most certainly could get a fair trial. Intentional or not, Holder's flip flop validates the Bush Era proposition that some terrorists are too dangerous to have fair and open trials, a concern that was conspicuous in its absence in the prosecution of the Oklahoma City bombers, let along the conspirators in the first World Trade Center bombing.
The arguments advanced against trying Mohammed in Manhattan -- be it New York or Kansas -- are feeble: It would be too dangerous. It would cost too much. It would further radicalize the enemy. It would cause traffic congestion.
But the big takeaway is that the Obama administration has not just put its stamp on one of the more insidious aspects of justice under the Bush-Cheney-Gonzalez troika, it has subscribed to the single most troubling aspect of America's increasingly awful criminal-justice system -- that the law applies to different people in different ways, be they well-heeled financiers, politicians on take, immigrants or terrorists.