Attorney General Consults Few in Terrorist Trial
Back in November, on Friday the 13th, no less, Attorney General Eric Holder decided to put the terrorists behind the 9/11 attacks on trial in lower Manhattan. Many Americans may think this is a bad idea (51%, while 29% approve, according to a Rasmussen Poll), but they don’t know who all Eric Holder consulted about this decision (namely his wife and his brother).
Holder was questioned about his decision in an interview by Jim Lehrer:
“JIM LEHRER: Who did you consult while making this decision?
ERIC HOLDER: I talked to the prosecutors in the Justice Department, prosecutors from the Department of Defense, people on the staff here at the Justice Department, people at Defense, a whole variety of people, who shared ideas, thoughts, gave cautionary ideas as well, and, using all of that, came up with the decision that we announced just earlier today.
JIM LEHRER: Did you run it by President Obama?ERIC HOLDER: Just informed him of the decision.He’s a person who believes that a president’s supposed to have hands off with his Justice Department. He’s a good lawyer. And there are times when I would like to involve him maybe a little more, but his view is that, in those things that are in the province of the attorney general, all he needs to be is informed.JIM LEHRER: So, you just told him what your decision was; you didn’t say, “What do you think about it, Mr. President?”
ERIC HOLDER: Nope. Told him last night — or had relayed to him what I was going to do last night while he was on Air Force One on his way to Asia.
JIM LEHRER: Did you talk to anybody outside the government?
ERIC HOLDER: I talked to my wife…
JIM LEHRER: Yes? OK.
ERIC HOLDER: … about what she thought. And I actually talked to my brother, who’s a retired Port Authority police officer who served…
JIM LEHRER: Oh, is that right? Yes.
ERIC HOLDER: … in New York, New Jersey, and who lost friends and colleagues on 9/11 in the towers, and talked to them about what — was it appropriate to bring it in New York, the symbolic significance of it, the possibility of getting a good and fair detached jury.”
But which “people” did he actually consult?
“NYPD Commissioner Ray Kelly said the Justice Department did not consult the city officials before deciding to send Khalid Sheikh Mohammed and four others to New York City for trial. ‘There was no consultation, no consultation with the police department. That decision was made. We were informed,’ Kelly said Tuesday,“ said Jonathan Dienst, in an article from nbcnewyork.com. “A spokesman for Mayor Bloomberg said the Mayor was only informed the morning Attorney General Eric Holder made his announcement.“
In an excerpt provided by an article in theweeklystandard.com, Senator Hutchison (R-TX) questions Secretary of Homeland Security Napolitino about her role in the terrorist trials:
“Sen. Hutchison: Well, this is something we will want to watch very carefully because I think it has some pretty strong consequences if it’s done and if it’s not done right. Let me ask one more question and I will be finished for this round. Guantanamo Bay detainees being tried in New York, we all know the decision has been made to do that. I have two questions. Number one, were you consulted about the security issues that would surround such a trail before the Attorney General made that decision and secondly, are you going to take extra measures during that trial to protect the travelling public while that is going on in New York? Sec. Napolitano: Well, the Department of Homeland Security is part of the review team that President Obama established in closing the prison part of Gitmo, not all of Gitmo, but where the detainees are and the answer is we have been working on a host of security issues and I will anticipate we will be working on, not just with DOJ, but also with the city of New York as they prepare for the trials. Sen. Hutchison: So, were you consulting in the beginning before the decision was made to bring them to New York for the trial?
Sec. Napolitano: I was not, not in the sense of being consulted as to whether security concerns would preclude the ability to try them in New York, but I’m very comfortable with the decision to try them in New York.“
Well, at least he consulted his wife and brother. I’m sure that helped him prepare for the Justice Department oversight hearing by the Senate Judiciary Committee… Or maybe not. The transcript below (I provide video for convenience) is from an NPR article. As Frank James pointed out, “The exchange started with Graham stumping Holder with a question one would have thought the attorney general would have been prepared for:
GRAHAM: Can you give me a case in United States history where a (sic) enemy combatant caught on a battlefield was tried in civilian court?
ATTY GEN. HOLDER: I don’t know. I’d have to look at that. I think that, you know, the determination I’ve made –
SEN. GRAHAM: We’re making history here, Mr. Attorney General. I’ll answer it for you. The answer is no.
ATTY GEN. HOLDER: Well, I think –
SEN. GRAHAM: The Ghailani case — he was indicted for the Cole bombing before 9/11. And I didn’t object to it going into federal court. But I’m telling you right now. We’re making history and we’re making bad history. And let me tell you why.
If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?
ATTY GEN. HOLDER: He would certainly be brought to justice, absolutely.
SEN. GRAHAM: Where would you try him?
ATTY GEN. HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried.
SEN. GRAHAM: Would you try him — why would you take him someplace different than KSM?
ATTY GEN. HOLDER: Well, that might be the case. I don’t know. I’m not –
SEN. GRAHAM: Well, let –
ATTY GEN. HOLDER: I’d have to look at all of the evidence, all of the –
SEN. GRAHAM: Well –
ATTY GEN. HOLDER: He’s been indicted. He’s been indicted already. (Off mike.)
SEN. GRAHAM: Does it matter if you — if you use the law enforcement theory or the enemy combatant theory, in terms of how the case would be handled?
ATTY GEN. HOLDER: Well, I mean, bin Laden is an interesting case in that he’s already been indicted in federal court.
SEN. GRAHAM: Right.
ATTY GEN. HOLDER: We have cases against him. (Off mike.)
SEN. GRAHAM: Right, well, where would — where would you put him?
ATTY GEN. HOLDER: It would depend on how — a variety of factors.
SEN. GRAHAM: Well, let me ask you this. Okay, let me ask you this. Let’s say we capture him tomorrow. When does custodial interrogation begin in his case?
If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?
ATTY GEN. HOLDER: Again I’m not — that all depends. I mean, the notion that we –
SEN. GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.
The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over — to the CIA, the FBI or military intelligence — for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.
What would you tell the military commander who captured him? Would you tell him, “You must read him his rights and give him a lawyer”? And if you didn’t tell him that, would you jeopardize the prosecution in a federal court?
ATTY GEN. HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings.
With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to –
SEN. GRAHAM: Mr. Attorney General, my only point — the only point I’m making, that if we’re going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is that
the rules in this country, unlike military law — you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach.
But under domestic criminal law, the moment the person is in the hands of the United States government, they’re entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we’re going to make this country less safe. That is my problem with what you have done.
You’re a fine man. I know you want to do everything to help this country be safe, but I think you’ve made a fundamental mistake here. You have taken a wartime model that will allow us flexibility when it comes to intelligence gathering, and you have compromised this country’s ability to deal with people who are at war with us, by interjecting into this system the possibility that they may be given the same constitutional rights as any American citizen.
And the main reason that KSM is going to court apparently is because the people he decided to kill were here in America and mostly civilian, and the person going into military court decided to kill some military members overseas. I think that is a perversion of the justice system.
ATTY GEN. HOLDER: What I said repeatedly is that we should use all the tools available to us: military courts, Article III courts. The conviction of Osama bin Laden, were he to come into our custody, would not depend on any custodial statements that he would make. The case against him, both for those cases that have already been indicted — the case that we could make against him for the — his involvement in the 9/11 case –
SEN. GRAHAM: Right –
ATTY GEN. HOLDER: — would not be dependent on Miranda warnings –
SEN. GRAHAM: Mr. Attorney –
ATTY GEN. HOLDER: — would not be dependent on custodial interrogations. And so I think in some ways you’ve thrown up something that is — with all due respect, I think is a red herring.
SEN. GRAHAM: Well –
ATTY GEN. HOLDER: It would not be something — (inaudible) –
SEN. GRAHAM: With all due respect, every military lawyer that I’ve talked to is deeply concerned about the fact that, if we go down this road, we’re criminalizing the war and we’re putting our intelligence-gathering at risk. And I will have some statements from them to back up what I’m saying.
SEN. LEAHY: Senator Graham, I –
SEN. GRAHAM: My time is up. I look forward to talking to you.
ATTY GEN. HOLDER: Sure.
SEN. LEAHY: And I –
SEN. GRAHAM: We can — there are some issues we can agree on.
ATTY GEN. HOLDER: One thing I would say: that, with regard to those people who are captured on the battlefield, we make the determinations every day as to who should be Mirandized, who should not. Most are not Mirandized. And the people who are involved in that decision involve not only lawyers and agents but also military personnel who make the determination as to who should be Mirandized.
But again, the notion that a conviction of Khalid Sheikh Mohammed would depend on his getting Miranda rights is simply not accurate.“
As for the trials, themselves, my feeling is that they’re a bad idea. One can argue that the terrorists need to be tried in a civilian court because they killed civilians in NYC. If that’s true, then the Japanese should have been tried for the civilians they killed in Pearl Harbor. But no, we went to war with them, because they killed military folks, too. Well guess what? Civilian casualties weren’t the only casualties on 9/11. Does anyone remember that the Pentagon was attacked, and that we had over 180 deaths there? Therefore, there’s more than enough grounds to try the terrorists in a military court.
Bret Stephens of the Wall Street Journal had plenty to say about the cluster-muck unfolding: “There are a few ways to predict the course of the trials. One is to consult what al Qaeda itself advises its members to do in the event that they are brought before a judge. “At the beginning of the trial . . . the brothers must insist on proving that torture was inflicted on them by state security before the judge,” goes a line in what is known as the Manchester Document, a 180-page al Qaeda how-to obtained by British police in 2000.This is, of course, a prescription for lying, though it shouldn’t be a tough sell with the jury given that KSM was in fact waterboarded by the CIA some 183 times. If anything, it provides a perfect opening for him to turn the tables on his accusers and put the U.S. government on trial, while embellishing any which way he pleases. No small number of potential New York City jurors would find KSM a more credible witness than any number of Bush administration officials—think Alberto Gonzales or Dick Cheney—who might be called to the stand.
A second way to predict how the trials might go is to look back at the trial of al Qaeda’s Zacarias Moussaoui, often described as the “20th hijacker.” Moussaoui’s case has been cited by defenders of Mr. Holder’s decision as an example of how civilian courts have succeeded in dealing with some of the most hardened terrorists.Really? Moussaoui was arrested in August 2001, and indicted that December. It would take until May 2006 before a jury would sentence him to life in prison, a single juror having spared him a death sentence. Assuming a similar time frame for the KSM trials, that means we can expect verdicts in 2015. That’s a long time to keep lower Manhattan in a perpetual state of red alert.Yet the Moussaoui trial wasn’t merely interminable. It was also incompetent. Moussaoui did everything he could to turn it into a circus, at various times entering contradictory pleas on the view, as he put it, that “you’re allowed to lie for jihad.” Lawyers for the government were repeatedly accused of malfeasance, leading Judge Leonie Brinkema to observe at one point that “I have never seen such an egregious violation of a rule on witnesses.” The judge herself came close to dismissing the entire case, even as the Fourth Circuit had to step in to reverse one of her rulings.
And this was a comparatively clean case, unlike, say, those of El Sayyid Nosair, acquitted in 1991 of the murder of Jewish fanatic Meir Kahane; or of Omar Abdel Rahman, the blind sheikh at whose trial for the 1993 World Trade Center bombing critical intelligence information was disclosed that gave Osama bin Laden clues as to what the U.S. knew about his network.”
Stephens says it so much better than I can, so I quoted him at length. We’re also going to see a backlash from our Muslim population who will probably feel threatened by the publicity of the case (hell, the public nature of the case may, in fact, lead to a backlash against them). There are so many issues that are going to come up, and I doubt we’ll be prepared for them. Jim Kouri with realitycheck.org brings up some good points: “Many police officers and prosecutors have become increasingly frustrated by their inability to investigate and prosecute cases successfully when key witnesses refuse to provide critical evidence or to testify because they fear retaliation by the defendant or his family and friends. They’ve also found it difficult to protect jurors or their families.“
Why Holder didn’t opt for a military trial is beyond me. Any benefits we might gain by pointing out how fair we were to these mass-murdering thugs will be completely eclipsed by the dangers and embarrassments that await us.
