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We Still Don’t Know Which Detainees Get Tried in Which Kind of System

One lingering question from today’s Senate hearing with Attorney General Eric Holder is just how the Justice Department determines which terror suspects get tried in a criminal court and which get tried in a military commission. It’s a persistent uncertainty: David Kris and Jeh Johnson, the two senior-most officials at Justice and the Pentagon for determining this question, didn’t have a coherent or clear answer when they testified about revisions to the military commissions system last summer. Holder’s answer today, to the extent he gave one, was that those decisions are made on a case-by-case basis, which is an elision. And elisions just raise the cynical suspicion that the real criterion is whether there’s a strong case against someone — if there is, he’ll be tried in criminal court; if not, he’ll be tried according to the more lax process rules of the commissions; and if there’s really no evidence to be brought in court, he’ll be held indefinitely without charge.

Ari Shapiro had a piece for NPR this morning quoting Jamie Gorelick, the former deputy attorney general and 9/11 Commissioner, saying she heard from unnamed Justice Department sources that the department does have a more rigorous formula for making that determination. But she didn’t know what it was. And she didn’t know why the Justice Department hadn’t released it already.

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