Krauthammer railed Holder for his “failure is not an option” attitude re KSM’s civilian trial CF, because using the judiciary as a showboat is a nightmare, a travesty, etc.
I completely agree, which isn’t really a shocking change when it comes to Krauthammer’s general brilliance. But what bugs me is that no one is pointing out the obvious:
The purpose of rule of law is to preclude failure from being an option.
By which I mean: If we all know it would be a travesty to acquit terrorists in civilian courts we find a way to avoid that becoming possible. If something is bound to fail, our entire constitutional republic is geared towards making that thing actually (as opposed to theoretically) impossible.
Conversely, if it’s all just language and AG Holder isn’t certain that KSM is a terrorist, that “failure” to convict is in fact an option, then don’t talk tough in a way that will make you look like a fool if we do fail to convict.
Since even before b-school I’ve talked about “competition” (tho not on this blog). There’s a sort of fledgling academic school comparing this meta law-finance-governance concept. I’m pretty certain that it’s in combining all of those traditionally-specialized schools that it’ll become obvious where a community’s destiny lies in terms of “success” or “failure.”
It seems so obvious that deviation from sovereignty — this weird desire to extend embracing jurisprudence to all the world, rather than protecting citizens at the expense of foreigners or at least alien combatants — spells failure. Similarly placing the potential for failure in the hands of a select few (the Fed, the Court, the Congress, a practically-unchecked Exec) will ultimately unravel the rules.
If failure is not an option, or if the Fed is “too big to fail,” then why flirt with failure?