Holder’s defense

Matthew Hoy
By Matthew Hoy on November 19, 2009

Attorney General Eric Holder appeared before the Senate Judiciary Committee yesterday to defend his decision to try Khalid Sheik Mohammed and four other 9/11 plotters in federal civilian court.

He didn’t do a good job.


Two bits of the transcript:

SENATOR LINDSEY GRAHAM, (R-S.C): Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

ERIC HOLDER, ATTORNEY GENERAL: I don't know. I'd have to look at that. I think that, you know, the determination I've made --

GRAHAM: We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no.

HOLDER: Well, I think --

GRAHAM: The Ghailani case -- he was indicted for the Cole bombing before 9/11. And I didn't object to it going into federal court. But I'm telling you right now. We're making history and we're making bad history. And let me tell you why.

You’ve heard before the old axiom that bad cases make bad law. This is the ultimate bad case. Let’s assume for the moment that the judge hearing this case isn’t a Carter appointee. Let’s assume he’s a Reagan or Bush 43 appointee and like most non-ACLU member Americans doesn’t want to let KSM and his buddies off on a technicality.

Simply due to the method of capture and treatment of these terrorists before they found their way into civilian court, there’s a lot the judge is going to have to overlook to get the result Holder and President Barack Obama have mandated. There were no warrants involved in the overseas searches that eventually led to the plotters. The waterboarding and other enhanced interrogation techniques used would likely result in any case against a normal criminal American being thrown out before ever getting to the jury. There’s no evidence any of them received Miranda warnings. And that becomes an issue:

GRAHAM: If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

HOLDER: He would certainly be brought to justice, absolutely.

GRAHAM: Where would you try him?

HOLDER: Well, we'd go through our protocol. And we'd make the determination about where he should appropriately be tried. [...]

GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

HOLDER: Again I'm not -- that all depends. I mean, the notion that we --

GRAHAM: Well, it does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over -- to the CIA, the FBI or military intelligence -- for an interrogation on the battlefield, because now we're saying that he is subject to criminal court in the United States. And you're confusing the people fighting this war.

If the trial judge ignores all of these normally disqualifying actions by the government – and the appellate courts concur – what does this mean for the proper defenses in our criminal justice system for the common criminal? We will have a precedent for allowing this behavior which is odious in the criminal justice system however distasteful but necessary it is for our national security.

From Holder’s answers, it becoming clear that he doesn’t realize the full import of what this decision will mean to the criminal justice system, let alone the war on terror.

It’s not too late for the Congress to stop this, but I doubt there are enough Democrat moderates to put the brakes on it.


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November 2009



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