Published November 20, 2009
In his recent appearance before the Senate Judiciary Committee, Attorney General Eric Holder had the opportunity to outline clearly the Obama administration’s approach to the vexing legal issues surrounding the war against terrorists. More importantly, he had the chance to explain his decision to send Khalid Sheikh Mohammed and four other terrorists to New York for a civilian trial in federal court. A distinguished prosecutor, Holder needed to put to rest the many legitimate concerns that have arisen lately about the administration’s approach to terrorism, and rebut each one with ready facts and irrefutable logic.
His performance was, to be blunt, a failure.
Indeed, his stumbling performance exposed the administration’s scattershot approach to detention and prosecution of terrorists.
Holder made four basic arguments for his decision to send KSM and others to federal court. In each instance, however, when pressed for the strategic reasons for doing so, the attorney general dropped the ball. In a few instances, the AG literally stuttered and did not even have an answer to the easy, predictable questions.
Holder’s first argument was that federal court was the best venue for KSM because it is the forum “most likely to obtain justice.” On its face, that sounds logical. The American people have faith in our court systems, including federal and state courts. They have little familiarity with standard courts-martial, and by extension, military commissions. Those of us who have been federal prosecutors are proud of our American system of justice, and federal courts. But that’s not really the issue.
Sen. Jon Kyl (R-Ariz.), a former judge, pointed out that KSM has offered to plead guilty, several times, in his military commissions trial. How, Kyl asked, was it more likely that KSM would “obtain justice” in federal court -- in a contested case -- when he has been begging to plead guilty in his military commissions case? A plea of guilty is the strongest form of proof in the law, and with a plea of guilty alone, the court can find the defendant guilty.
Holder responded that his decision to send KSM to federal court did not depend on the “whim and decrees” of KSM; that it was Holder, not KSM, who would decide where KSM was to be tried.
Kyl’s points were logical and born of common sense. Holder surely knew it, but didn’t offer an explanation. Pressed further, Holder admitted that he did not even know if KSM still wanted to plead guilty -- a disturbing admission, since that should have been a factor in the choice of venue in the first place.
His second point, repeated throughout his testimony, was that he believes the United States is at war, implying that the law of armed conflict, not criminal law, was the underlying legal framework for most decisions. Yet, he instantly muddied the waters by also stating that the attacks of 9/11 were not only acts of war, but also crimes. True or not, by testifying this way and not explaining any strategic overarching rationale for his legal decisions, Holder opened himself to sharp criticism -- which he got.
Sen. Lindsey Graham (R-S.C.), the only military lawyer (JAG) on the committee, pounced, asking Holder what the administration’s plans were when they captured Usama bin Laden. Where would they try him, federal court or by military commission? Holder actually stuttered, and meekly said, “It depends.”
Graham, sensing that the administration lacked a plan if and when Bin Laden was captured, pressed on. Why not, using Holder’s KSM logic, send him to federal court? Holder gazed blankly as the fusillade continued. When, queried Graham, would custodial interrogation of Bin Laden begin, thus requiring Miranda and an attorney? Again, Holder said, it depends. If, pressed Graham continued, you plan to send him to federal court from the beginning, you’ll give up the chance to interrogate him like any enemy combatant, lose invaluable intelligence, and risk turning 9/11 into a crime, not an act of war. Holder had no real answer, except to say that the case against Bin Laden was overwhelming -- not recognizing that he had admitted he didn’t know where they would try him, and thus there is no actual “case.”
Holder’s third message: there have been hundreds of successful terrorism trials in federal court and we have enjoyed a conviction rate of over 90 percent in those cases. Therefore, we should be confident in our federal courts’ ability to handle these types of cases. The impression he created is that we have a great track record in trying terrorism cases in federal court, these cases are terrorism cases, and thus there will be no problem. That sounded good -- until Sens. Graham and Orrin Hatch (R-Utah) spoke up.
Sen. Hatch, in his gentlemanly way, suggested that Holder’s oft-quoted number of successful terrorism trials was inaccurate. Hatch asked Holder for the actual number of successful terrorism trials, prosecuted in federal court, where terrorists were captured in the United States and convicted of material support to terrorism. Holder, who should have expected that question, said he did not “have that number.” He should have.
Graham drove the point home, asking Holder: “Can you give me a case, in United States’ history, where an enemy combatant, caught on the battlefield, got tried in federal court?” Holder, his brow starting to glisten, said nothing. Graham, realizing that he had successfully completed his cross examination, provided the answer, stating, “None. We are making history.” Thus, Holder’s argument -- all terrorism trials are the same -- crumbled.
Holder’s fourth, and weakest argument, was that “justice has been delayed for eight years,” and he was committed to obtaining swift and certain justice for the perpetrators of 9/11 through federal court trials. He asserted that his decisions were based on the “facts and law, regardless of politics,” and that there was not a “political component to my decision.”
Sen. Kyl pounced on Holder’s “justice delayed” comment. Quoting from Andy McCarthy’s article titled “Justice Delayed” from National Review Online, Kyl said, “This is chutzpah writ large. The principle reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals and challenging them in the courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & Burling, volunteered its services to at least 18 of America’s enemies in lawsuits they brought against the American people … It is mind-boggling that the delay in completing commissions trials would be derided by Eric Holder, a lawyer whose firm is among those responsible for the litigation-driven delay that became a lawfare triumph for Al Qaeda.”
Speechless, Holder harrumphed, and finally managed to eek out, “That’s ridiculous.” But Kyl wasn’t finished. He placed the McCarthy article into the official record, and then demanded to know how many current Justice Department officials working on detainee matters were former members of the Guantanamo Bar Association. Holder, clearly off his game, assured Kyl and members of the committee that his Justice Department knew how to police itself, and anyone with a conflict in these cases -- like Holder himself -- have and will continue to recuse himself from detainee policy-making.
In that brief but pointed exchange, Holder lost the intended moral high ground of his point. His “we’re-better-at-this-than-Bush-and won’t-stand-for delay-like-they-did” argument became a mere punch line. He became defensive, and everyone knew it, including the Democrats.
Holder’s poor performance on Wednesday revealed that he hasn’t -- and by extension the administration -- developed a comprehensive approach, based on the law of war, on how and where to prosecute terrorists. Rather than providing the definitive over-arching strategy and thinking behind prosecuting enemy combatants in military commissions versus federal court, and backing up his arguments with facts and logic, Holder clumsily failed to back up his own arguments.
We’re at war. This is serious business. Holder, like all those who have dealt with these tough questions, deserves credit for his public service and willingness to serve. But with his lackluster performance, the administration lost its shine on these issues. He demonstrated beyond any doubt that this administration not only doesn’t have all the answers, but that many of the answers it does have don’t make a lot of sense.
Charles “Cully” D. Stimson, a former federal and military prosecutor, and former Deputy Assistant Secretary of Defense for Detainee Affairs (2006-07) is a Senior Legal Fellow at The Heritage Foundation.