Imagine going into court, and the presiding judge asks your attorney whether your case is being pursued in the right venue, the initial and fundamental question about any litigation.

Imagine your attorney staring silently through a seriously pregnant pause before stammering that he doesn’t know the answer but will research the question.

Now imagine the judge dismissively telling your attorney, “Let me answer that for you, counselor. The answer is no.”

Well, ladies and gentlemen, U.S. Attorney General Eric Holder is your attorney, and he responded just like the hypothetical attorney above after being asked the seminal question any competent attorney would have anticipated being asked by a U.S. Senator in, some would argue, the most important legal case in this country’s history.

In Senate hearings last week, Holder testified about his decision to prosecute Khalid Sheikh Mohammed in a civilian trial. Khalid is the self-professed mastermind of the 9/11 attacks that killed more than 3,000 Americans.

Sen. Lindsey Graham (R-South Carolina) asked Holder for the names of previous enemy combatants taken from the battlefield and prosecuted in a civilian court. The silence greeting Graham’s question was palpable, only to be interrupted by nearly incoherent babbling about researching the issue.

Graham dismissively told Holder not to bother with his research because the answer was none.

Holder’s inability to respond to Graham’s question clearly demonstrates an arrogance beyond the pale. Holder’s supplicants and apologists are quick to defend Holder. At the same time they suggest it will take time to research the legal question.

Such a claim is laughable considering Holder’s own testimony before the committee.

“I am a prosecutor, and as a prosecutor my top priority was simply to select the venue where the government will have the greatest opportunity to present the strongest case in the best forum,” Holder read from his prepared text. “I studied this issue extensively…I asked a lot of questions and weighed every alternative. And at the end of the day, it was clear to me that the venue in which we are most likely to obtain justice for the American people is in federal court.”

If Holder is to be believed, whatever questions he asked did not include what precedent, if any, there was for prosecuting alleged war criminals in a civilian court. If such question was not asked, it demonstrates an astounding level of legal ignorance.

First-year – no, first-semester – law students learn where various trials are held and how case law history, or precedence, affects current cases.

It’s not like Holder had little time to research the issue before appearing before the Judiciary Committee last Wednesday. Gov. David Paterson, (D-NY) was informed of the decision to prosecute KSM in New York six months earlier.

Thus Holder has had months to complete his legal research, if such research was undertaken. Holder’s inability to respond to Graham’s question more likely indicates that the decision to prosecute KSM was made without concern for legal precedent. It also suggests that Holder literally did not expect any mere mortal to challenge any decision he made regarding the matter.

The Wall Street Journal wondered if the delay in announcing the prosecutorial decision was not politically motivated since it came shortly after the special congressional race in New York and the gubernatorial races in New Jersey and Virginia.

Just as startling as his silence, Holder proved his chutzpah by guaranteeing a conviction. “Failure is not an option,” Holder told the senators.

Senator Charles Grassley (R-Iowa) was not convinced.

“I don’t know how you can make a statement that failure to convict is not an option, when you’ve got juries in this country,” Grassley said. “I think a lot of Americans thought O. J. Simpson ought to be convicted of murder, rather than being in jail for what he’s in jail for now. It seemed to me ludicrous.”

Holder assured the judiciary committee that his decision to prosecute KSM in federal civilian court was to demonstrate to the world how just and fair this country’s legal system is in dispensing justice.

Then he went on to tell the world that it doesn’t matter what happens at trial, Khalid will be kept confined. So much for an impartial prosecutorial system.

There’s only one way to guarantee a successful criminal prosecution in this country, and that is to bribe the presiding judge and all jurors, including the alternate jurors. Bribing the judge is the only way to guarantee the case will even be submitted to the jury, which at this time is far from certain.

Bribery is probably not a viable option in such a high-profile case.

Under criminal procedural rules declared in various U. S. Supreme Court decisions, once a party becomes the object of prosecutorial inquiry there can be no interrogation until the suspect is advised of his constitutional rights. Since KSM’s captors were not interested in prosecuting him, it’s unlikely he was told that he could remain silent unless he waived his rights to an attorney.

In the absence of such warnings, anything KSM said in interrogations, and any evidence discovered as a result of anything he divulged will not be able to be used in a criminal prosecution of him.

Whatever evidence was presented to the grand jury which indicted KSM and evidence obtained prior to his capture, will likely be all that the government will be able to use at KSM’s trial, if there is a trial.

Holder essentially confirmed this view when he said the government has ample evidence to prosecute high-level terrorists like KSM and Osama bin Laden should he be captured. Holder claimed interrogators don’t have to worry about giving such prisoners a lawyer to ensure their initial statements after being captured could be used as evidence.

Apparently Holder plans on ignoring Supreme Court decisions affording criminal defendants specific rights such as Miranda.

With Holder in charge of this country’s Justice Department, it is more likely KSM’s trial judge will dismiss the indictment.

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