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Holder Defends 9/11 Civilian Trials, Defuses Critics


Attorney General Eric Holder testifies before the Senate Judiciary Committee on Wednesday. (James Berglie/ZUMApress.com)

Eric Holder stepped into the Dirksen building this morning an embattled man facing Republican members of the Senate Judiciary Committee fiercely critical of his desire to try Khalid Shaikh Mohammed and the other 9/11 conspirators in federal court. He left three hours later having defused some of his critics; conceding little; sticking up for his department’s role in counterterrorism; and placing back onto the table the prospect of a New York trial for the man known as KSM.

[Security1]For months, Holder and his Justice Department have been at the center of conservative ire at the Obama administration’s national security policies. Sen. Mitch McConnell (R-Ky.) called Holder out in a caustic February speech for playing an unduly influential role in counterterrorism, evidenced by Holder’s contentions that KSM and would-be Christmas bomber Umar Farouk Abdulmutallab should be tried in civilian courts. Sen. Jeff Sessions (R-Ala.) and Sen. Chuck Grassley (R-Iowa.), both Judiciary Committee members, have portrayed administration lawyers who defended Guantanamo detainees as possessing shadowy, un-American loyalties, and an ad building on their statements dubbed the lawyers “the al-Qaeda Seven.” Sen. Lindsey Graham (R-SC) has spent months working on a deal with the White House to trade GOP support for closing the Guantanamo Bay detention facility in exchange for overriding Holder and trying KSM before a military commission.

But Holder did not appear under fire during his first Senate testimony since the KSM controversy swelled. More often, it was his critics who backed down, conceded rhetorical territory or disagreed among themselves. “There’s been a lot of misinformation placed out there,” a confrontational Holder testified. “Without casting aspersions on anyone in this room, there’s been a lot of unnecessary politicization of national security issues that I don’t believe has benefited this country.”

Holder reminded the committee that civilian courts have convicted “close to 400″ individuals on terrorism charges, compared to three in military commissions — though Holder, adapting a phrase of Graham’s, said he would be “flexible, pragmatic and aggressive” in keeping both the commissions and the civilian courts as options for terrorism trials. That caused Sessions, who sought to portray Holder as an enemy of the commissions, to assert: “It’s pretty clear to me you made a firm decision to go the other way, with civilian courts with all these other cases.” Holder replied that he had referred more terrorism cases — six, to be specific — to the military commissions than he had to the civilian courts. Similarly, when Sessions attempted to get Holder to say he’d favor reading Miranda rights to Osama bin Laden, Holder answered that there would be no need, since the government has more than enough information at present to convict bin Laden of terrorism crimes.

“I acknowledge that’s possible,” Sessions said.

That set the tone for Republican parrying with Holder. Grassley said he never intended “to call into question the integrity of any employee of the department” when requesting the names of department lawyers who represented Guantanamo detainees. Holder called the “al-Qaeda Seven” ad “reprehensible, and said that he would not participate in an effort to “tarnish the patriotism” of attorneys who “did what John Adams did” by defending hated clients. Grassley did not press the issue.

Graham found himself more in agreement with Holder than with Sessions. He portrayed himself as a Republican who doesn’t “reject all [civilian] courts” for terrorism cases, an implicit knock at his GOP colleagues. After Holder conceded that 48 detainees from Guantanamo Bay were “not feasible to transfer [and] too dangerous to prosecute,” the two men found themselves in substantial agreement over designing a system of indefinite detention with annual administrative review in addition to permitting detainees to receive habeas corpus hearings before federal judges. Notably, while Sessions contended that military commissions could better protect classified information than civilian trials, Graham — as of February, a leading proponent of that view — did not. It was easy to forget that Graham and Holder have spent months on either side of the issue of whether Khalid Sheikh Mohammed deserves a civilian trial.

On that issue — one in which both civil libertarians and conservatives have awaited Holder’s testimony to see if he would accept a military commission — Holder did not give any ground. “No final decision has been made about the forum in which Khalid Sheikh Mohammed and his co-defendants will be tried,” Holder said, predicting a decision would not be made for “a number of weeks.” Pointedly, he added that “New York is not off the table” as a possible location for a trial, even though many New York politicians have objected to the trial and called for it to be moved — objections that in January raised the prospect of scuttling civilian trials for the 9/11 conspirators altogether. When Sen. Chuck Schumer (D-NY) urged Holder not to hold the trial in New York, Holder said the Obama administration would “take into consideration, obviously, the expressions of the political leadership” in the state but indicated those objections aren’t decisive, adding that it would also consider “what we are able to glean from the population” about support for the trial.

Holder’s steadfastness on the trial won him plaudits from civil libertarians. “I was glad to see Holder standing strong against the Republicans trying to beat the administration over the head with closing Guantánamo and using civilian trials,” Vince Warren, the executive director of the Center for Constitutional Rights, said in a statement. “If the U.S. is ever going to regain credibility in the world, the administration can’t let itself be bullied by fear mongers with their eyes on midterm elections rather than the law.”

But Holder’s embrace of military commissions and indefinite detention without charge cast a pallor on their enthusiasm. “I’m not sure about Holder. Some of the folks I know and respect at DOJ think very highly of him,” said ret. Air Force Col. Morris Davis, the former chief prosecutor of the military commissions at Guantanamo Bay, in an email. “On the other hand, what I’ve seen on the national security front — basically adopting the same Bush-Cheney policies candidate Obama was firmly against — has been disappointing. I used to get perturbed when the ‘flip-flop’ accusation got thrown around, but it’s hard to argue that the label doesn’t fit the administration’s waffling view that military commissions are bad, no they’re good, no they’re bad again, oh wait maybe they’re good after all approach.”

Democrats on the committee rallied to Holder’s defense. “I’ve come to the conclusion that some of the attacks are to diminish you, and you should remain strong,” said Sen. Dianne Feinstein (D-Calif.).

Sen. Sheldon Whitehouse (D-RI), a former Rhode Island attorney general and federal prosecutor, tacitly compared Holder’s critics to a mob, a resonant image after The New Yorker recently reported that a January New York rally of conservatives against the KSM trial featured someone yelling, “Lynch Holder!”

“The emblems of American justice,” Whitehouse said, are “the blindfold and the balance, and not the torch and the pitchfork.”

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