Holder: ‘Failure is Not An Option’ in 9/11 Trials

Thursday, November 19, 2009 at 8:52 am

Testifying before the Senate Judiciary Committee on Wednesday, Attorney General Eric Holder said that one reason he decided to try the five suspected 9/11 co-conspirators in federal court is because that was where he would most likely be able to win a conviction. As he said later in the hearing: “Failure is not an option. These are cases that have to be won. I don’t expect that we will have a contrary result.”

Holder was trying to reassure his many Republican critics, who insist that trying Khalid Sheikh Mohammed and his alleged al-Qaeda colleagues in a New York federal court is a “grievous mistake” that will endanger American citizens and undermine the “war on terror.”

But Holder’s statement was also eerily reminiscent of one made during the Bush administration by Pentagon General Counsel William Haynes — a statement which outraged Democrats and contributed to the resignation of the military’s top prosecutor.

In October 2007, Col. Morris Davis resigned from his post as military commission chief prosecutor, saying that he refused to report to Haynes. Davis later testified that he felt there was interference in his cases from Defense Department officials, citing specifically Haynes’ statement that “We can’t have acquittals. If we’ve been holding these guys for so long, how can we explain letting them get off? We can’t have acquittals. We’ve got to have convictions.”

Haynes resigned several months later.

Davis, now a civilian, is still concerned about justice and the appearance of justice for Guantanamo detainees. He recently wrote in The Wall Street Journal that using both federal courts and military commissions to try terror suspects “is a mistake. It will establish a dangerous legal double standard that gives some detainees superior rights and protections, and relegates others to the inferior rights and protections of military commissions. This will only perpetuate the perception that Guantanamo and justice are mutually exclusive.”



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Pingback posted November 19, 2009 @ 9:19 am

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Comment posted November 19, 2009 @ 9:29 am

I think you're conflating two very different events out of context (ironically for TWI). No prosecutor brings a case unless he/she thinks it will be won. A prosecutor bringing a case with no good faith likelihood of conviction, particularly in furtherance of broader political objectives, is arguably prosecutorial misconduct (which we saw in the US Attorney scandal of 2006). In this context, Holder's statement was in response to direct questions about the risks of DOJ losing a terrorist case in civilian court.

Holder, as AG, has direct line authority on the decision over whether and in what forum detainees may be prosecuted. It's not surprising that he would justify his decision to try some detainees in civilian court with confident statements that he expects to obtain convictions (of course, bravado aside, his team must still persuade a jury). Every prosecutor announcing an indictment to the public makes a similarly confident statement.

Haynes, by contrast, was the GC of DOD. He did not have line authority over the JAGs who would prosecute military commission cases. It's unlikely he had access to the actual case evidence the prosecutors had when he made the statement. Rather, Haynes was really arguing for convictions to buttress the Bush DOD's policy decision to detain suspected terrorists for years without charge, regardless of the actual evidence. He was crossing the line by, from Davis's perspective, seeking to interfere with prosecutorial discretion on how and whether to prosecute, settle or dismiss detainee cases based on merits of individual cases.

Given that conflation of Haynes and Holder's statements without context, this post reads like a cheap shot to push the silly meme, “ZOMG, Holder is just like the Bush Administration!”

Daphne Eviatar « Antiwar Radio with Scott Horton and Charles Goyette
Pingback posted November 19, 2009 @ 5:16 pm

[...] Bush administration officials, the Republican fear of public trials for terrorism suspects and how Holder’s guarantee of terrorist convictions suggests that the justice system is [...]

Comment posted December 29, 2009 @ 7:13 am

I subscribed to your blog when is the next post

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