Fourth, there is the closing of the prison at Guantanamo Bay and the civilian trial for Khalid Sheik Mohammed and other 9/11 conspirators in Manhattan. Under Holder's direction, this process has collapsed. There is no serious plan to close Guantanamo. Holder has been unable to articulate reasons why some terrorism cases are referred to civilian courts while others are tried in military tribunals. And his groundwork for a "trial of the century" was botched in almost every respect. The White House, having lost faith in Holder's ability to manage terrorism trials, has assumed direct control of the process. Civilian trials for the 9/11 terrorists now seem unlikely anywhere in the United States. But backing down on that commitment will have a cost. "If this stunning reversal comes to pass," said Anthony D. Romero, executive director of the American Civil Liberties Union, "President Obama will deal a death blow to his own Justice Department, not to mention American values." While a military trial for KSM would hardly be a mortal blow to American ideals, Holder's initial announcement has created a political expectation on the left that may be impossible to fulfill.
Finally, there are the Supreme Court briefs filed by Holder that he failed to disclose to Congress during his confirmation -- likely to be the focus of a congressional oversight hearing in which Holder will testify on Tuesday. Holder's spokesman says this omission was inadvertent. But one of those briefs opposed the detention of Jose Padilla as an enemy combatant, leading Sen. Jon Kyl, R-Ariz., to wonder, "Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country's most publicized terrorism cases?" Holder's briefs preview his later decisions on the underwear bomber and KSM. Few in Congress or the White House have leapt to defend Holder's convenient omission.
Add to all of this a series of public gaffes. America is a "nation of cowards." The possibility of capturing Osama bin Laden alive "simply does not exist."
Sometimes haplessness can provoke sympathy. But Holder mixes ineptness with self-righteousness. Critics of his questionable choices, he says, "cower." They lack "confidence in the American system of justice."
But there is another possibility. Perhaps Holder's critics -- in Congress, in the country and even within the White House -- just lack confidence in his judgment.