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Welcome Back to the Rule of LawBush makes good on a terrorism case (finally).

By Dahlia Lithwick
Posted Tuesday, Jan. 30, 2007, at 6:10 PM ET

(Continued from page 1)

In order to win extradition for Delaema to face trial in the United States, prosecutors had to make a raft of promises to the Dutch authorities that would be insulting to American perceptions of the rule of law, were they not so completely well-earned over the past few years. The defendant will be tried in criminal court, not by a military tribunal. He will not face the death penalty, even though under our law his crimes could warrant it. He will serve his sentence—possibly a life one—in a jail in the Netherlands, not here. And, perhaps most astonishing of all, the United States had to agree that Dutch courts will be able to review and possibly modify the terms of the American court's sentence once Delaema is returned to the Netherlands. The American judgment, then, is not necessarily final. And all this because, according to Delaema's attorney, the U.S. government no longer can be trusted to treat its prisoners humanely. Clearly, the Dutch authorities agree.

There is much to be understood from this deal between the American and Dutch authorities. On the one hand, it highlights the level of mistrust and disdain we have earned from our Western allies. But it also reveals a new, almost sensible, oddly secret approach by the Justice Department. The Bush administration can become pretty accommodating when its option is either an open criminal trial or no domestic prosecution at all. Suddenly the criminal courts—long touted by Bush and Cheney as ineffective in prosecuting the war on terror—are adequate. Suddenly, open proceedings don't threaten national security. After literally years of dismissing our allies, the existing conspiracy laws, and the criminal courts, the Justice Department has finally agreed to give 'em a whirl. After years of fighting for symbolic legal gains at the expense of small, tangible ones, the president has finally accepted that it's worth nailing terrorists with powers he has, as opposed to powers he merely craves.

What a contrast between the Bush administration's striking inflexibility in Arar's case and humble pragmatism in Delaema's! The government cannot concede the error in torturing an innocent Canadian but is willing to take what it can get to prosecute a Dutch insurgent? Do we trust our friends in the Netherlands more than our allies to the north? Or is admitting a mistake more difficult for this administration than accepting a legal compromise?

Perhaps the difference between our treatment of Arar and Delaema is best explained as the slow triumph of expediency over empty symbols. As the post-9/11 fever recedes, the administration may be rediscovering the sober virtues of trials over torture, the benefits of multilateralism over going it alone. The president has either realized or been forced to accept that other Western democracies, the U.S. Congress, the federal judiciary, and the free press don't, in fact, want unhinged jihadists roaming the streets any more than he does. And having gone toe to toe with each of these institutions, it now seems he needs their help more than they need his. So, the president will cooperate. But he will never apologize.

In Dalaema's case, that means striking a bargain with the Netherlands. But in the Arar case it would require asking too much: apologizing so that the whole world can hear. And if the president's concern is now pragmatism over symbolism, let me offer a longer wish list: the closure of Guantanamo, fair trials for its occupants, and the dropping of all charges against Jose Padilla. The president isn't quite there yet. But with this Delaema deal, he may be starting to circle back to the legal world he pretty much demolished in the wake of 9/11. Welcome back to the Rule of Law, Mr. President. We've missed you.

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Dahlia Lithwick is a Slate senior editor.
Photograph of Maher Arar by Bill Grimshaw/Getty Images.
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