Holder: We Must Use ‘Both Our Civilian Courts and Our Military Commissions to Defeat Our Enemies’
In a packed room of civil libertarians assembled for a Constitution Project dinner, Attorney General Eric Holder gave a passionate if unpopular defense of the use of military commissions in addition to civilian courts to prosecute terrorism detainees.
Disappointing his civil-libertarian supporters, Holder said to use “one path while blocking the use of the other” — that is, trying every terrorist suspect in a civilian court — would mean the Obama administration “would undoubtedly fail at our fundamental duty at bringing every terrorist to justice. That is simply not an outcome we can accept.” But in an implicit rebuke of his conservative critics — who he said use ”language designed to scare people, rather than educated” — the attorney general told a hushed audience, “We are a nation at war.”
Holder didn’t back away from the “many successes” of civilian courts. Specifically citing his decision to prosecute would-be Northwest Airlines flight 253 bomber Umar Farouk Abdulmutallab, saying his prosecution yielded intelligence that was “not just valuable but actionable.” And as he did before the Senate Judiciary Committee yesterday, Holder defended the hundreds of successful prosecutions the courts have yielded, and cited the international legitimacy they enjoy as a counterterrorism asset.
“On the other hand, military commissions are also useful in the proper circumstances,” Holder said, calling them “not only appropriate but also necessary to convict terrorists.” You could hear a pin drop. “Evidentiary rules reflect the realities of the battlefield” in the commissions, a contention civil libertarians generally reject, and Holder pledged, “I expect to refer additional cases” to the commissions. He said there was “no contradiction” in using both venues for prosecution of terrorists, saying that only al-Qaeda and its allies are applicable for trial before the commissions — and neither are American citizens like Anwar al-Awlaki, the Yemen-based alleged al-Qaeda provocateur.
“It is unfortunate and unhelpful that some of these facts have been obscured,” Holder said, calling for a “legitimate and robust conversation.” Holder said he would ”not stand by as the hard work of the FBI… as well as our career prosecutors are maligned,” a reference to Keep America Safe’s attack on Justice Department attorneys who represented Guantanamo detainees. Using language that echoed a formulation used yesterday by Sen. Lindsey Graham (R-S.C.) — who opposes Holder on trying Khalid Shaikh Mohammed and the other 9/11 conspirators in federal courts — the attorney general ended by calling for legal approaches to terrorism that he called ”pragmatic, effective, [and] aggressive.” (Graham preferred “flexible, pragmatic and aggressive.”)
Like his testimony yesterday, Holder gave no indication whether Khalid Shaikh Mohammed would ultimately be tried before a civilian court or a military commission. Ginny Sloan, the Constitution Project’s director, got a round of applause in introducing the attorney general by saying, “Everyone in this room applauds your commitment to the rule of law and in trying these cases in federal courts.” Nor did Holder address the 48 suspected terrorists he said yesterday would neither face terrorism charges before any legal body nor be released — despite his rationale of using commissions and federal courts to “bring every terrorist to justice.”