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."

Remember the OPR Report?

A year ago today, Senators Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) sent a letter to the Department of Justice inquiring about the status of the Office of Professional Responsibility's investigation into the conduct of Justice Department lawyers who authorized the abuse, humiliation and torture of detainees in U.S. custody.

The Senators were assured that the report had been completed; it has yet to see the light of day.

Last March, the administration explained that the holdup was because the attorneys representing the lawyers who had authorized torture wanted time to review the report and comment on it -- and presumably to suggest revisions.

But even as the lawyers wrangled over the wording, the report's conclusions were apparently so disturbing that in August, Attorney General Holder announced that his decision to open a preliminary review into the abusive interrogation of certain detainees was based in part on the findings and analysis of the OPR report - which still had not been released.

In November, Holder once again told Senators on the Senate Judiciary Committee that the report was completed, was in "its last stages of review," and that by the end of the month "the report should be issued."

That was three months ago. So where's the report?

In January, news accounts revealed that the latest version would not recommend that the lawyers whose work laid the foundation for the Office of Legal Counsel's approval of abusive practices -- John Yoo and Jay Bybee -- be referred to their state bars for ethics violations. Earlier versions reportedly did recommend that they be referred to state disciplinary authorities for sanctions, including revocation of their licenses. Yoo is now a law professor at the University of California, Berkeley; Bybee is now a federal appeals judge with life tenure. Apparently their attorneys had the last word.

Regardless of the Justice Department's official recommendations, the report - including all the relevant facts revealed during the investigation of the attorneys' conduct about how they came to authorize torture and other illegal acts - ought to be produced publicly.

Last June, Human Rights First, along with 12 other human rights groups, appealed to Attorney General Holderto release the report and live up to the administration's promises of transparency and accountability. As the groups wrote then, release of the report is critical to demonstrating that the U.S. government has in fact made a clean break from past abuses and renounced the excessive secrecy and defective legal reasoning that marred the United States' reputation as a country that upholds the rule of law. The United States is also legally obligated under the Convention Against Torture to investigate and hold accountable those who participated in the torture and abuse of detainees in U.S. custody; the lawyers who authorized those practices are not exempt from such an investigation.

Still, eight months after human rights groups sent that letter, and a year to the day after Senators Durbin and Whitehouse sent theirs, we still have no idea when the OPR report will be released, or what is now holding it up.

The longer the administration hems and haws and tinkers with the ethics report before releasing it, the more the stain of the past administration's transgressions becomes its own. It's high time for the Justice Department to come clean.


Countdown to 1/20/09: Watch your civil liberties

Last November, Michael Mukasey stood in the Justice Department's Great Hall as he was sworn in as the new US Attorney General. Having been given the first opportunity to speak publicly to his staff, Mukasey said:

"We do law, but the result is justice. And that is why our ultimate client - the people of this country - can and do rest secure in the knowledge that our unswerving allegiance is to the law and the Constitution, and that the result of faithful performance of our duty is justice."

My, how times reveal the true nature of people; we've now all come to recognize Mukasey as the disappointment who refused to come out against waterboarding, squelching our hopes for a firm protector of the Constitution.

And it seems he's on a roll.

There's more...

RI-SEN: Questions Swirl Around Nasty Emails

This is outrageous.

A barrage of mysterious emails have been sent out in the last week in bulk to nearly 100 recipients at a time attacking Sheldon Whitehouse in the most vile and tasteless manner. Recipients of this email include news outlets and community leaders throughout the state. The email sender has the name of "Noname Nolast" and the email address ""

My blog technology administer Alex tracked down the ISP address of this mysterious emailer and guess what?

This email is coming from the United States Senate!

There's more...

Lincoln Chafee (R-RI) "Nobody's Perfect"

Any doubts that Lincoln Chafee is a "real" Republican must have been laid to rest yesterday when he chose to associate his increasingly sleazy campaign with a serial abuser of women, Antonio R. Freitas. It is a measure of how desperate his campaign has become that he is willing to stake his argument for re-election on the word of a man twice convicted of battering women. It is one thing for Freitas, a man with an axe to grind against the prosecutor (Whitehouse) who twice put him behind bars, to spout such nonsense, but for Chafee to associate himself with Freitas' absurd conspiracy theories does a disservice to his office and the people of Rhode Island. But then as Lincoln Chafee so cavalierly said about Freitas yesterday, "nobody's perfect." Perhaps not, but Rhode Island can do better.

There's more...


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