“What we did is totally consistent with what has happened in every similar case” since 9/11, he said. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.” Without exception, he noted, every previous terrorist suspect apprehended inside the country had been handled as a civilian criminal. Even so, critics such as Krauthammer were denouncing Holder for failing to send Abdulmutallab directly to Guantánamo. As a senior national-security official in the White House put it, “It’s a fantasy! Under what alternative legal system can Special Operations Forces fly into Detroit, and take someone away without court oversight?”
According to Kate Martin, the director of the Center for National Security Studies, in Washington, the military can’t simply grab suspects inside the U.S. and hold them without charge or a hearing. “It violates the Constitution, which extends to everyone inside the U.S.,” she said. “You can’t be seized without probable cause. You have the right to due process, and to a trial by a jury of your peers—which a military commission is not.” Confusion on this point may derive from the Bush Administration’s controversial handling of two suspected terrorists, José Padilla and Ali Saleh Kahlah al-Marri. Both men were arrested in the U.S. by law-enforcement officials, and indicted on criminal charges. But Bush declared Padilla and Marri to be “enemy combatants,” which, he argued, meant that they could be transferred to military custody, for interrogation and detention without trial. (Neither suspect provided useful intelligence.) The cases provoked legal challenges, and in both instances appeals courts ruled that Bush had overstepped his power. The Administration, not willing to risk a Supreme Court defeat, returned the suspects to the civilian system.
(…)
On civilian trials of terrorist suspects
Holder told me that he was “distressed” that people “who know better” were claiming that the courts were not up to the job of trying terrorists. He added that he found it “exceedingly strange” to hear this argument from Giuliani, who had been a zealous prosecutor. “If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder said.
(…)
Last July, Holder assigned eight experienced criminal prosecutors from the Southern District of New York and the Eastern District of Virginia to build the best criminal case they could against Mohammed and his co-conspirators. They had until October 1st to investigate. The prosecutors gathered fresh evidence from around the globe, rendering the military’s case comparatively weak. Neil MacBride, the U.S. Attorney who represents Virginia’s Eastern District, participated in the process, and said, “The prosecutors came together, and produced hundreds of pages of analysis that was granular, and evidence-specific.” Many countries that had refused to coöperate with military commissions at Guantánamo were much more favorably disposed to criminal trials. Among the countries that stood willing to provide evidence and witnesses for court prosecutions were Germany, France, and Great Britain.(…)
Last fall, Holder selected the offices led by MacBride and Preet Bharara, the U.S. Attorney for the Southern District of New York, to prosecute the criminal case. Bharara, addressing the national-security concerns, said of Holder, “This is not a rogue Attorney General. These are reasoned, considered decisions made by people in America who have the greatest knowledge and concern about the revelation of these materials. And, with all due respect, they have greater knowledge than the critics.”(…)Dick Cheney had equated Holder’s approach to handling terrorism with giving “aid and comfort to the enemy”—the legal definition of treason. Holder said of Cheney, “On some level, and I’m not sure why, he lacks confidence in the American system of justice.” He added that he had seen documents making clear that Cheney’s office was the driving force behind the Bush presidency.
(…)
Holder shook his head at Scott Brown’s assertion that America’s “laws are meant to protect this nation, not our enemies.” Such rhetoric, he said, was “inconsistent with a little organization called the United States Supreme Court.”(…)
Karen Greenberg, the executive director of the Center on Law and Security, said that a difficulty with recalibrating what was formerly called the “war on terror”—a term that Obama has shunned—is that any change is seen as “a slap in the face of all that Bush did.” She added, “The Justice Department was emasculated under Bush. Holder’s trying to reassert its lead role in handling the prosecution of terrorism, which Bush delegated to the Pentagon. It’s not minor. It’s about bringing the whole approach to handling terrorists back inside the rule of law. But it’s a public rebuke, suggesting that for eight years his predecessors betrayed American traditions.”(…)
(…)
Among other problems, Obama’s Justice Department found itself under frequent attack in the courts for Bush-era policies. Detainees were winning habeas-corpus hearings, and public-interest groups were mounting challenges to the Bush Administration’s stances on state secrecy, surveillance, and torture. In addition, the Obama Administration faced litigation over access to Bush-era documents. An informed source said of the situation, “We were buried in an avalanche of shit.”
On Guantanamo:
Obama’s executive orders effectively put Holder in charge of the legal process of closing Guantánamo. Most of the President’s legal advisers believed that virtually all the Guantánamo detainees could be tried in criminal courts, or transferred to courts in other countries. Amy Jeffress, Holder’s national-security adviser, set up three interagency task forces to review the detainees’ cases. But the challenge proved far greater than expected. “There was no file for each detainee,” Jeffress told me. “The information was scattered all over the government. You’d look at what the Department of Defense had, and it was something, but, as a prosecutor, it wasn’t what you’d like to see as evidence. . . . It was pretty thin stuff.” The Bush Administration, she said, clearly “hadn’t planned on prosecuting anyone. Instead, it was ‘Let’s take a shortcut and put them in Guantánamo.’ ”
(…)
Daniel Fried:
“The damage done by Guantánamo was greater than the damage done by some of the low-level people let out.”
Last words:
Late last month, at home, in Northwest Washington, Holder addressed those who have suggested that he and Obama are too weak to take on terrorism. “This macho bravado—that’s the kind of thing that leads you into wars that should not be fought, that history is not kind to,” he said. “The quest for justice, despite what your contemporaries might think, that’s toughness. The ability to subject yourself to the kind of criticism I’m getting now, for something I think is right? That’s tough.” He paused, and added, “This is something that can get a rise out of me, the notion that somehow Eric Holder and Barack Obama, this Administration, is not tough. We have the welfare of the American people in our minds all the time. We’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.”
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