Dems Urge Holder to Stay Strong on 9/11 Trial

Democratic members of the Senate Judiciary Committee today urged Attorney General Eric Holder to stick to his initial determination that the alleged 9/11 plotters should be tried in civilian court, and not bow to partisan politics on what should be a legal determination.

"I think that the degree to which this dialogue has escalated is really very unhealthy," said Senator Dianne Feinstein (D-Cal.) at this morning's hearing, calling the recent attacks on Holder "reprehensible."

"Democrats did not do to Bush following 9/11 what has been done to this administration.. . . I believe the best interest of the people of this nation are served by the Attorney General, and the President, having maximum flexibility as to which venue these defendants should be tried in...I have never seen anything quite like this."

Feinstein was referring to pending legislation that would require the Obama administration to try the 9/11 defendants in the recently-created military commissions rather than in traditional federal courts, where almost all terrorism cases have been tried in the past. Another pending bill would require the administration to place all terror suspects in military custody rather than have them questioned by the FBI, which has the most experienced terrorist interrogators.

Feinstein denounced these efforts at the Senate hearing as based on deliberate ignorance. "The record is ignored," she said. "It doesn't matter that the Bush administration brought 200 terrorists to justice under Article 3 courts," she said, apparently referring to a Human Rights First study analyzing the successful prosecutions of self-described Islamic terrorists since 9/11. "It doesn't matter that the military commissions, fraught with controversy, have convicted only three terrorists, two of whom are already out."

Citing the recent guilty pleas of convicted terrorists Najibullah Zazi and David Headly, she said: "the fact of the matter is that Article 3 courts have other charges they can use if they don't have evidence to sustain a pure terrorists charge," referring to the civilian federal court system authorized by Article 3 of the U.S. Constitution. "You should have that option," she said to Holder. "A lot of the attacks are just to diminish you. You should not buy into that. You should stay strong."

Senators Russell Feingold (D-Wisc.), Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) made similar remarks and echoed Feinstein's concerns.

Attorney General Eric Holder this morning gave no indication whether the 9/11 plotters will ultimately be tried in a civilian court or military commission, although he promised that the decision would be made within "a number of weeks."

Holder said that "New York is not off the table as a place where they might be tried," yet said the administration would "take into consideration" local objections.

Although local officials had initially supported hosting the trial, after a downtown real estate group protested about the disturbance to local businesses, officials such as New York Mayor Michael Bloomberg and Senator Charles Schumer reversed their stance.

Holder made clear this morning, though, that the trials could be held in federal court even if they don't take place in downtown Manhattan. "The Southern District of New York is a much larger place than simply Manhattan," said Holder. "There's also the possibility of trying the case in other venues beyond New York."

Senator Jeff Sessions (R-Ala.) hammered Holder on his initial decision to try the case in a New York court, then criticized him for wavering on the decision in response to local objections, and concluded: "I hope you will reevaluate this and we will soon have clarity about what the policy of the Department of Justice is."

Holder wouldn't say where the 9/11 defendants will ultimately be prosecuted, he did defend the track record of civilian federal courts, which he said have prosecuted close to 400 terrorists since 9/11, relying on recently-released Justice Department numbers.

Holder pleased some of his critics, however, by repeating that the administration still intends to hold 48 detainees "who are too dangerous to transfer but not feasible to prosecute."

Senator Lindsey Graham (R-S.C.), who's been pushing Congress and the administration to support legislation that would create a scheme for indefinite detention without trial within the United States, seized on the opportunity to note that the rules for indefinite detention based on "dangerousness" remain unclear.

"I would urge you to work with Congress to see if you can retain flexibility," Graham said to Holder. "If you're a member of Al Qaeda you're a continuing threat to the world," he said, adding: "holding a member of Al Aaeda who is a continuing threat until they die in jail is okay with me."

Asked by Sen. Benjamin Cardin (D-Md.) whether there would be a review process for those indefinitely detained prisoners who could be left to die in jail, Holder said: "that's something we 're still working on."

Holder didn't specifically say whether that process would be developed by the executive branch or should be created by Congress, although he indicated that an interagency review was ongoing and that he's "hoping to have something we will be willing to share and put in place in a relatively short time."

Another Anti-Federal Court Argument Crumbles

Andrew McCarthy, the former prosecutor and National Review Online columnist, has lately been highly critical of trying suspected terrorists in traditional federal courts. (In the past, he's been critical of military commissions, too, as being too soft on terrorists.) The criticism of civilian trials is partly because, he and others claim, federal courts risk releasing classified information to terrorists. That myth has just been thoroughly debunked.

The poster case for the critics' claim is the 1995 federal court trial of Egyptian-born Omar Abdul Rahmand Sheikh" -- commonly known as the "blind sheikh" -- who was successfully prosecuted for conspiring to bomb the World Trade Center in 1993. In that case, the government’s list of unindicted co-conspirators was reportedly inadvertently leaked during the trial and made its way to Osama bin Laden.

Now, the "blind sheik" trial has become one of the leading red flags raised by critics of the Obama administration's plans to try terrorist suspects in federal courts. Critics claim it's a prime example of how civilian court trials help terrorists obtain classified information to support their cause.

But the list in question, it turns out, could have been protected, as my former colleague Spencer Ackerman explains in The Washington Independent. The prosecutor on the case, Andrew McCarthy, could have invoked the Classified Information Procedures Act, or CIPA, to protect that list from public disclosure. He did not.

“We did not ask for CIPA protection on any of the discovery, including the co-conspirator list,” McCarthy told Ackerman. “I suppose we could’ve done that.”

Yes, he could have, and that would have prevented the leak.

In fact, in a review of all major terrorism cases involving Islamic extremist or jihadist groups produced by Human Rights First, former prosecutors with experience prosecuting terrorism cases concluded that CIPA "is working as it should: we were unable to identify a single instance in which CIPA was invoked and there was a substantial leak of sensitive information as a result of a terrorism prosecution in federal court."

But it does require that the prosecutor pay attention to the evidence in the case and determine whether it should be protected. Civilian prosecutors do that all the time. Either McCarthy was not paying attention, or he decided that the list of unindicted co-conspirators wasn't particularly sensitive or important and did not merit special protection. Given that the list was not classified, McCarthy may well have concluded that its disclosure would not be harmful. Either way, his role in the "Blind Sheikh" case destroys the argument that McCarthy himself has been expounding for some time now -- that prosecuting terrorism cases in civilian federal courts risks releasing sensitive national security intelligence to dangerous terrorists.

Turns out that's only true if the prosecutor makes no effort to protect that intelligence.

It's worth noting that the military commissions' rules for the handling of classified information are modeled on and virtually identical to the rules used in civilian federal courts. And the military prosecutor still has to invoke the rule for it to effectively protect any evidence.

March Madness Strikes the Terror Debates

The Wall Street Journal is absolutely right thatLindsey Graham is tossing up an embarrassing air ball. Graham's effort to get the administration to abandon legitimate federal court trials for suspected terrorists in exchange for the funding needed to close Guantanamo Bay is headed nowhere fast, predicts the Journal.

As I've noted before, Graham doesn't have support for his scheme from either side of the aisle.

Senators with any respect for the U.S. justice system, let alone real concern for national security, know that it's absurd to bargain away the requirement that the 9/11 suspects get a legitimate trial. That means a trial that not only convicts the guilty but reveals what really happened when the United States was ruthlessly attacked on September 11, 2001, and showcases our respect for the rule of law over brutality and political expedience. After all, the US constitution is no bargaining chip - it's survived 223 years, through war and peace, for good reason.

Richard Durbin (D-Ill.), Russell Feingold (D-Wisc.), Patrick Leahy (D-Vt.) and others know that any cheap political points lawmakers might score by abandoning American principles will come back to bite them - particularly if military commission convictions are reversed on appeal. They'll be even more embarrassed when the country looks back a few years from now and wonders how Congress came to abandon the most basic American principles because it was cowed by a handful of thugs eager to be seen as warriors for Allah martyred by the United States government.

Lawmakers speaking out against civilian trials, meanwhile, are so intent on undermining the Obama administration, regardless of their impact on national security, that they're obstructing justice to score political points. Not only do they oppose federal trials, but they won't agree to closing the prison camp at Guantanamo Bay so long as President Obama remains in office. No matter that scores of military leaders, in addition to former President George W. Bush and Senator John McCain - when he was a presidential candidate - agreed that Guantanamo must be shuttered.

So the Journal's right that Graham can't possibly deliver victory on his proposed compromise. But the paper's conclusion -- that military commissions are the place for KSM & Co. to go -- is based on assumptions wholly divorced from the facts.

Military commission proceedings "since September 11 have been serious and even-handed," writes the Journal in its endorsement of those trials.

Really? Three convictions in eight years - only two of which followed trials that were even contested -- hardly backs that claim up.

Take the case of Salim Hamdan, who military prosecutors characterized as a "hardened Qaeda member" and bin Laden's right hand man. The military jury acquitted Hamdan of all conspiracy charges and three of eight charges for "material support for terrorism." The result was a sentence of only five and a half years - most of which he'd already served. And that was a case that government officials had said was "one of their strongest" against any of the Guantanamo detainees, as reported in the Wall Street Journal.

Meanwhile, federal prosecutors have convicted more than 195 terrorists in federal court.

Even Brookings Institution fellow Benjamin Wittes and former Bush administration official Jack Goldsmith, writing in the Washington Post last week, acknowledge the weakness of the military commissions. The two note that "serious legal issues remain unresolved, including the validity of the non-traditional criminal charges that will be central to the commissions' success and the role of the Geneva Conventions." Sorting out those issues "will take years and might render them ineffectual," the authors add. They also note that the commissions lack international legitimacy.

Wittes' and Goldsmith's solution, however, is even worse than the Journal's. "Don't bother trying them at all," the two scholars pronounced. "Domestically, the political costs of trying high-level terrorists in federal courts have become exorbitant," they argue, while the "public relations and related legitimacy benefits" of a military commission trial aren't great, either.

So there we have it. Whether and how to try a group of men who are believed to have orchestrated the worst terrorist attack and mass murder ever on U.S. soil has come down to a question of pure politics. "It is time to be realistic about terrorist detention," write Wittes and Goldsmith, and to concede that the time has come to do away with our quaint notions of justice in favor of a new system of indefinite detention without trial. That should be supported, they argue, with new legislation codifying its legitimacy in U.S. law.

To be sure, that's been the de facto response to many of the suspected terrorists held at Guantanamo Bay for the past eight years.

A similar course was briefly considered after World War II, when Winston Churchillreportedly told Joseph Stalin that he'd rather just execute Nazi leaders upon their capture. Stalin, of all people, insisted that they deserved a trial.

Historically, the United States has prided itself as being several steps above Stalin in terms of its respect for the rule of law. But these latest proposals make one wonder just how low some American opinionators and policymakers may be willing to sink.

Lindsey Graham's Third Strike?


Given Senator Lindsey Graham's military background, one would think he would push hard for the trial and conviction of all terrorists. After all, U.S. federal courts have successfully tried more than 195 terroristssince the terrorist attacks of September 11. But for the past five years, Graham has instead repeatedly obstructed the effort to try and convict the 9/11 detainees.

In 2005, the South Carolina Senator helped push through the Detainee Treatment Act, which tried to strip federal courts of jurisdiction over all Guantanamo detainees' legal challenges to their detention. In Hamdan v. Rumsfeld, the Supreme Court ruled that the law could only apply to future detainee claims, not those already filed. It also ruled that the Bush administration's military commissions were unconstitutional.

So Graham helped broker a deal with the White House to pass the Military Commissions Act of 2006, promising that would solve the detainee problem. That law tried once again to deny habeas rights retroactively, and created a new set of Congressionally-authorized military commissions to try suspected terrorists.

Back then, dozens of former military leaders, Judge Advocates General and civilian legal experts objected that the Military Commissions Act of 2006 was a bad idea. Among other things, it would violate Common Article 3 of the Geneva Conventions and the United States Constitution.

With Graham's urging, Congress passed the law anyway.

Since then, the military commissions have convicted exactly three terrorists - one of whom did not even put up a defense. The other two have already been set free.

In June 2008, in Boumediene v. Bush, the Supreme Court ruled that the Military Commissions Act of 2006 was unconstitutional for limiting detainees' access to judicial review; the Supreme Court made clear that Guantanamo detainees have the right to challenge their detention in regular civilian courts.

That sharp rebuke from the Supreme Court has not stopped Lindsey Graham from now attempting a third time to broker yet another deal to deny detainees the right to civilian court review, claiming once again that he can solve the government's Guantanamo detainee dilemma.

Given his track record, does Graham really have any credibility on this issue?

This time, Graham is trying to push through Congress a bill that would deny the government the funding necessary to try the 9/11 defendants in a civilian federal court, and require their trial by military commission.

"I believe it is inappropriate to give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," said Senator Lindsey Graham. "It has never been done in the history of warfare and now is not the time to start."

Actually, foreigners have always been given the same constitutional rights as U.S. citizens in criminal proceedings. And military detainees have always had the right to challenge their detention in civilian courts.

Regardless of whether the law is constitutional, as a matter of national security former military leaders say that Graham's proposal is a very bad idea.

"It's sad and a mistake that we should politicize these decisions and get Congress involved in what is clearly the constitutional responsibility of the president," said Retired Admiral John Hutson at a recent press conference.

Retired General Harry Soyster called on President Obama to stand firm in "administering the great justice system of this country," adding that he should "not give into political pushes that would push us clearly in a wrong path with long-term consequences."

Retired Major General William Nash said pushing the 9/11 trials into military commissions would "give aid to our enemies" and "lessen our reputation with our allies."

Even General Colin Powell opposes the idea: "The suggestion that somehow a military commission is the way to go isn't born out by the history of the military commissions," Powell said recently on CBS's Face the Nation.

Yet Graham is now also making a far more sweeping attempt to undermine suspected terrorists' right to a civilian trial. Senator Graham is reportedly trying to broker a deal with the White House and his Senate colleagues to get them to pass a new law authorizing indefinite detention without trial of terror suspects on U.S. soil. In return, Graham claims, he will deliver Republican support for the closure of the Guantanamo Bay prison camp.

Graham doesn't seem to have much support for his proposal from either side of the aisle, with objections on both legal and practical grounds.

"There is a law already on indefinite detention," Senate Armed Services Chairman Carl Levin, (D-MI), told Congressional Quarterly. "It's called the Geneva Convention."

Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, said "I don't think there's any need for a new statute," adding that it "confuses the issue to suggest that we don't have that authority now."

That hasn't stopped Senator Graham from promising the White House once again something he appears wholly unable to deliver.

The question is whether anyone will fall for it this time around.

Caving on the 9/11 Trial Would Send All the Wrong Messages

The Washington Post reports today that President Obama's advisors are planning to recommend that the administration reverse its decision to try the September 11 suspects in federal court and instead opt for military commissions. That's more than just disappointing, given the overwhelming consensus of military and legal experts that civilian courts are more effective for prosecuting terrorists. If the president were to heed that advice, it would also be astonishingly bad politics.

The Post story doesn't say what President Obama has decided to do, or whether Attorney General Eric Holder, who announced the decision to try Khalid Sheikh Mohammed and his alleged co-conspirators in federal court to much fanfare in November, will go along with those recommendations. But for the administration to reverse itself now on a key legal and strategic decision that critics have made a political hot potato would signal to Obama's opponents that if they just heat up the rhetoric and prey on people's fears enough, the administration will cave. And that would be a sorry signal of how this administration plans to determine critical matters of national security.

Recent reports have suggested that Senator Lindsey Graham has been cutting deals with White House Chief of Staff Rahm Emanuel, not only on the 9/11 trials but on passing legislation to secure the indefinite detention of terrorism suspects in exchange for supporting the administration's efforts to close the prison camp at Guantanamo Bay. To drum up support for his ideas, Graham has been going around denouncing the idea that the United States would "give the mastermind of the 9/11 attacks the same constitutional rights as an American citizen," and insisting that military commissions are the "proper venue" for such trials. Graham neglects to mention in such statements that all criminals in the United States have always had constitutional rights in U.S. courts -- these rights are, after all, enshrined in the U.S. Constitution.

And to call military commissions the "proper venue" is to suggest that they have a strong record for convicting terrorists -- which, in fact, they do not. Military commissions have convicted precisely three terrorists so far, two of whom have already been released from prison. By contrast, U.S. federal courts have convicted almost 200 self-described Islamic jihadist terrorists since the terrorist attacks of September 11.

None of that matters, however, when it comes to the politics of fear. Since Attorney General Eric Holder announced the decision to try the 9/11 suspects in federal court, his opponents have turned it into the linchpin of their opposition to the administration. At a demonstration in front of the federal courthouse in New York in December, protesters called Obama and Holder "the real terrorists" and demanded their impeachment.

As I stood in the cold rain watching them, I had to wonder, since when did so many ordinary Americans (admittedly many with tea bags hanging from their star-spangled hats) come to care so much about the procedural complexities of the federal judicial system? Why in the past, when the Bush administration prosecuted hundreds of terrorists in this same Manhattan courthouse, had they never claimed that our judicial system was a "moral disgrace" that would allow terrorists to "spew their hate across America"?

Of course, most of those protesters know very little about the U.S. court system and how much more effective it's been at convicting terrorists and locking them away for life than any military commission has. But some disgruntled Americans, understandably angry and insecure in tough economic times, have been whipped into a frenzy by Obama's most adamant opponents, who've channeled their fears into angry protests about terrorism rather than addressing their real and legitimate concerns.

Perhaps that's to be expected. But for the Obama administration to cave to that hysteria would send all the wrong messages. It would signal a victory for the politics of fear over the longstanding American tradition of respect for the rule of law. It would showcase a triumph of crass political deal-making over rational, fact-based decisionmaking. For President Obama, it would suggest a profound weakness on his part -- a message to his adversaries that if they just make enough of a stink about the decisions they don't like, then they can change them. And most importantly, it would mean that the administration is willing to sacrifice lasting national security to momentary political expedience. And that would be the saddest statement of all.


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