Update:
Justice Delayed
Quote of the day:
The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it’s natural manure. (Thomas Jefferson)
Holder’s friends in the al-Qaeda bar caused the trial delays he now criticizes.
Eric Holder, Obama’s Attorney General: waterboy for the Muslim POTUS?
Of all the infuriating aspects of the decision to transfer five 9/11 war criminals to civilian federal court, the one that grates most is the contention that the Obama administration is finally moving forward after “eight years of delay” — as Attorney General Eric Holder put it at his Friday press conference — during which the Bush administration managed to complete only three military-commission trials.
- WSJ: Holders decision to move the trials of AL Qaeda suspects to NYC isn’t very popular
- Obama convicts, but the jihadists will still win
- Culture of corruption: Holder, terrorists, Covington & Burling
- Is the Obmessiah really that dumb?
This is chutzpah writ large. The principal reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals by challenging them in the courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & Burling, volunteered its services to at least 18 of America’s enemies in lawsuits they brought against the American people. (During 2007 alone, Covington contributed more than 3,000 hours of free, top-flight legal assistance to our enemy detainees.)
Almost from the moment President Bush authorized military commissions in 2001, this legion of litigators flooded the courts with habeas corpus petitions, contending that military detention and trials violated the Constitution, the Uniform Code of Military Justice, and the Geneva Conventions. In 2004, the al-Qaeda bar induced the Supreme Court, in Rasul v. Bush, to grant enemies a statutory habeas corpus right to challenge their military detention in civilian court. Congress tried to stop them by amending the habeas statute to divest the lower federal courts of jurisdiction in these lawsuits, but the al-Qaeda bar later persuaded the liberal bloc on the Court to ignore that amendment.
In 2006, in Hamdan v. Rumsfeld, our enemies’ lawyers persuaded the Court’s liberal bloc to invalidate the military commissions on the ground that they had been prescribed by the president rather than by Congress. This rationale was (a) disingenuous, because Congress had implicitly approved military tribunals in the 2005 Detainee Treatment Act, (b) legally untenable, inasmuch as presidentially authorized commissions have a long history in the United States, and (c) practically pointless: Since Congress already had implicitly approved the commissions, it was no surprise when it then explicitly approved the commissions in the 2006 Military Commissions Act. In terms of delay, however, the damage was done. The military commissions that had been convened up to that point — and delayed by continuous litigation — had to be started all over again under the new congressionally authorized system.
As night follows day, the al-Qaeda bar immediately went to work attacking the new commission system. Simultaneously, the terrorists’ volunteer lawyers worked to undermine Congress’s narrowing of their statutory habeas corpus rights by claiming the combatants had a constitutional right to seek civilian federal court review of their military detention. In the disastrous 2008 Boumediene v. Bush decision, the Supreme Court’s liberal bloc again went along with the leftist lawyers for the enemy. Armed with that victory, the lawyers redoubled their efforts, using the new Boumediene ruling (which only applied to detention, not to commission trials) as a basis to argue, again, that the military-commission system was invalid.
It was well into 2008 when the lower courts finally ruled that Boumediene did not invalidate the commissions. At that point, in the eleventh hour of its second term, the Bush administration was able to push ahead and get some commissions done. In the interim, however, Boumediene meant that more than 200 detainee cases were dumped on the lower federal courts with no guidance about how to proceed.
Attorney General Michael Mukasey pleaded with Congress to enact rules to make the process more orderly, but Democrats turned a deaf ear. Like the al-Qaeda bar, they wanted to maximize due-process rights for the enemy but didn’t want to be held politically responsible for doing so. What better way to thread that needle than to sit on their hands while federal judges — who are insulated from voters — made up procedural rules as they went along? At the urging of the enemies’ lawyers, those judges are treating combatant-detention hearings as if they were full-blown trials and ordering the release of trained terrorists who should be detained.
It is mind-boggling that the delay in completing commission trials would be derided by Eric Holder, a lawyer whose firm is among those responsible for the litigation-driven delay that became a lawfare triumph for al-Qaeda. Holder and his comrades did everything they could do to undermine the commission system, both in legal motions and in public appearances accusing the Bush administration of torture, war crimes, and disregard for the legal rights of terrorists.
And exactly when would Holder have had Khalid Sheikh Mohammed be tried? We did not gain custody of him until his capture by the Pakstanis in 2003. After that, years were taken to break him in our attempt to extract the full breadth of his knowledge of al-Qaeda’s players and plans, and to exploit that intelligence to save lives. KSM was submitted to a military commission in 2006 — shortly after Holder’s colleagues in the al-Qaeda bar got the commission system invalidated in Hamdan.
Yet, within two years (i.e., in less time than most civilian terrorism cases), KSM and four fellow war criminals stood ready to plead guilty and proceed to execution. But then the Obama administration blew into Washington. Want to talk about delay? Obama shut down the commission despite the jihadists’ efforts to conclude it by pleading guilty. Obama’s team permitted no movement on the case for eleven months and now has torpedoed a perfectly valid commission case — despite keeping the commission system for other cases — so that we can instead endure an incredibly expensive and burdensome civilian trial that will take years to complete.
How many years? Terrorists bombed the U.S. embassies in 1998. It took three years to bring four of them to trial. (There would have been a fifth, but the civilian systemfailed to detain him securely: He maimed a prison guard during an escape attempt and was never brought to trial for the bombings.) The embassy-bombing trial took seven months to complete and failed to result in death sentences for the two capital defendants. Guess when the appeal was decided? Just a few months ago — eleven years after the attacks and eight years after the trial. The convictions were upheld by the appellate court, so now we move on to the Supreme Court. Once that’s done, they’ll have a couple of years to relitigate their trial and sentences by filing habeas corpus motions.
But it’s good to hear we’re finally ending all this unseemly delay.
— National Review’s Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
Update: Holder grilled by Senate Republicans/Politico
Attorney General Eric Holder told the Senate Judiciary Committee that he expects to direct prosecutors to seek “ultimate and most uncommon penalty” for self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed.
But his tough words have been met with a vehement response from committee Republicans, who warn that his decision to try Mohammed in New York is a fundamental mistake, legally dubious and dangerous to the city.
Sen. Lindsey Graham (R-S.C.), who had been asked by the White House to not speak about the decision to try Mohammed in federal court, broke his silence Tuesday, telling Holder his decision is “a perversion of the justice system.”
Graham, a former military lawyer, said “we’re making history and we’re making bad history.” Holder would not commit to Graham where a prospective trial of Osama bin Laden would be held. Graham asked why it would be any different than Mohammed’s trial.
“I’d have to look at all of the evidence,” Holder responded.
“You’re a fine man,” Graham said. “I know you want to do everything to help this country be safe but I think you’ve made a fundament mistake here.”
Testifying before Sen. Patrick Leahy’s (D-Vt.) committee, Holder insisted that Mohammed’s trial in New York will not give him “more of a platform to spew his hateful ideology.” The judge will have “firm control” over the conduct of the trial.
“I’m not scared of what Khalid Sheikh Mohammed will have to say at trial — and no one else needs to be either,” Holder said.
Holder, however, did concede that those being tried in New York could have also been prosecuted in military commissions.
“At the end of the day, it was clear to me that the venue in which we are most likely to obtain a justice for the American people is a federal court,” Holder told the committee.
Senate Minority Whip John Kyl’s (R-Ariz.) interaction with Holder was the most contentious. He asked the attorney general how the justice department thought a civilian trial would produce a better result when Mohammed said he’d plead guilty and ask for execution in a military tribunal.
“He will not select the prosecution and venue,” Holder said. “I will select it and I have.”
Sen. Jeff Sessions of Alabama, the committee’s top Republican, cited the bevy of opposition lining up against Holder’s decision, including Sept. 11 Commission Chairman Thomas Keane.
Sen. Herb Kohl (D-Wis.) was the fieriest Democratic inquisitor of Holder, asking him what he would do if prosecutors failed to obtain a conviction.
“Failure is not an option,” Holder said. “These are cases that have to be won. I don’t expect we will have a contrary result.”
Kohl shot back: “That’s an interesting point of view. And I’ll leave it at that.”
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2nd Update: A Tin Pot Presidency
Atlas Shrugs
And while Eric Holder called us a nation of cowards and was horribly wrong, he now calls Khalid Sheik Mohammed a coward. Again he is horribly wrong. The jihadis are savage, barbaric, brutal, and bloody, but they are not cowards.
The Tinny Bravado of Eric Holder
In his testimony before the Senate Judiciary Committee today, Eric Holder will say, according to the Associated Press, that “I have every confidence the nation and the world will see him for the coward he is….I’m not scared of what (Mohammed) will have to say at trial and no one else needs to be either.” And, “we need not cower in the face of this enemy. Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready.”
I suppose we should be grateful Holder is calling Khalid Sheikh Mohammed a coward, rather than describing the American people as “a nation of cowards” (as he did earlier this year). But is anyone else struck by the tinny bravado of Holder’s prose? When politically correct careerists start beating their chests and proclaiming their own courage–you know they’re in deep trouble. Let’s see how Holder does today when he finishes posturing and has to answer the intellectually serious and morally compelling criticisms of his plan to grant KSM and his fellow terrorists a trial in federal court in New York. And if he does badly (as I expect), let’s see if some congressional Democrats have the courage to break with the administration and join in passing legislation to block Holder’s plan.
{ 2 comments… read them below or add one }
They have had this plan ready for a long time.
They look so smug.
What needs to be done to stop them
Vote them out – or revolt. The worst are the PC morons who have shut their eyes to the truth in order to feel comfy.