NOV. 18TH ON ERIC HOLDER : ANDREW McCARTHY
NRO — The Corner
Wednesday, November 18, 2009
As usual, Holder undone by Holder [Andy McCarthy]
As I noted in addressing Attorney General Eric Holder’s testimony this morning, the heart of his defense of the administration’s decision to try Khalid Sheikh Mohammed and the other 9/11 terrorists in civilian court is the howler that there is no real difference between a civilian trial and a military commission.
Holder absurdly claimed that he believed it would be easier to get a conviction in civilian court — notwithstanding that the more lax evidentiary standards in military commissions make it easier for the government to get its proof admitted. And that’s beside the fact that the jihadists wanted to plead guilty and proceed to execution in their military commission. (In Holder-world, conviction in an unpredictable civilian trial two years from now is somehow a surer thing than a military commission in which the defendants asked to plead guilty eleven months ago.)
Holder also claimed that there was no real difference between the protection of classified information in civilian and military courts. I explained in the aforementioned post why this isn’t true. But I neglected to mention the most obvious reason why it isn’t true: the Justice Department’s own “protocols” for sorting out which enemy combatants get military commissions and which get civilan trials with all the rights and privileges of American citizens.
During today’s testimony, Holder was especially incoherent in trying to explain the rationale — which has resulted in the worst war criminals getting a civilian trial while lesser war criminals are stuck in military tribunals. He kept falling back on DOJ’s newly developed “protocols” for making this judgment. Scott Johnson has an excellent post at Powerline discussing these protocols. There are only three and they are very elastic. But for now, I want to focus on the second one (my italics):
B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns.
So here are a couple of questions the Judiciary Committee might want to ask Holder in its follow-up:
1. If, as between civilian trials and military commissions, there is no real difference in the degree to which national defense secrets are protected, why does the Justice Department apply a protocol which asserts that the “protection of intelligence sources and methods” will be different in the two systems?
2. If the evidentiary rules in the two systems are virtual mirror images, why does DOJ apply a protocol that says evidence that is admissible in one system may not be admissible in the other? And, since Holder claims the government has an easier time proving its case in civilian court, can he identify a single category of evidence that is admissible in civilian court but not in a military tribunal?
On number 2, here’s a hint: One of the major attacks on the military commissions, advanced by lawyers like those in Holder’s firm who volunteered their services to the enemy, was that military commissions permitted too much hearsay and, potentially, evidence obtained by “torture.” They argued that the government should be required to prove its case under what they insisted were the more demanding standards that govern civilian trials.
11/18 10:43 PMShare
The AG’s Distortion of the Opposition to His Decision [Andy McCarthy]
Attorney General Holder has several times offered a spirited defense of federal prosecutors — including expressions of confidence that KSM and the other jihadists will be convicted. This is a strawman: There’s no reason to defend people who are not being attacked, and conviction is not the issue.
As it happens, Preet Bharara, the new U.S. Attorney for the Southern District of New York, worked for me for a while when he was a new prosecutor. He is superb. There isn’t the slightest doubt in my mind that he and the assistant U.S. attorneys he assigns to the KSM case will do an excellent job and uphold the high standards and traditions of the Southern District and the Justice Department. I’m also very confident that KSM and the others will be convicted.
For what it’s worth, I think the team I led in the Blind Sheikh case did an excellent job, and we also convicted everybody. But that is not the measure of success. It’s not whether the government wins the litigation; it’s whether the national security of the United States has been harmed more by having the trial than it would have been harmed by handling the detainees in a different manner.
What made the United States most vulnerable in the Nineties was our enemies’ perception that they were at war and we were not. They gave us bombs, we gave them rights. That encouraged them to attack us more often and more audaciously — which is exactly what they did.
If we are at war, and the Attorney General said this morning that we are, we have to treat it like a war. Pressed by Sen. Graham this morning, the AG could not name a single time when, during war, we captured an enemy combatant outside the U.S. and brought him into the United States for a civilian trial — vesting him with all the rights of an American citizen. That’s because hasn’t happened. That’s not how you treat wartime enemies.
Further, if we are going to have military commissions at all (and Holder says we will continue to have them), it makes no sense to transfer the worst war criminals to the civilian system. Doing so tells the enemy that they will get more rights if they mass-murder civilians.
The question is not whether the prosecutors are able, whether they’ll do a spectacular job, and whether they’ll get these guys. They are extraordinarily competent, they will perform at a very high level, and I’ll be shocked if they don’t win the case. The issue is: What damage will we sustain by doing things this way, and is there a way we could do them without sustaining that much damage?
11/18 01:32 PMShare
Re: Durbin on Moussaoui [Andy McCarthy]
A reader notes some facts I should have mentioned: Moussaoui was arrested in Minnesota at a time when the military commission system did not yet exist. Unlike KSM & Co., he wasn’t captured in wartime outside the United States and detained outside the United States at a time when a military commission system had been implemented.
11/18 12:28 PMShare
Durbin on Moussaoui [Andy McCarthy]
AG Holder’s testimony has resumed, and Sen. Durbin claims out that no one complained about the Moussaoui trial being in a civilian court. In fact many of us complained — I pointed out several times that Moussaoui was the “poster child” for commissions.
More importantly, though, Sen. Durbin and the attorney general fail to point out that the Moussaoui trial was a three-ring circus, that the district judge actually tried to dismiss the indictment, and that we don’t know what would have happened had Moussaoui not surprised everyone by pleading guilty. When the Court of Appeals reinstated the Moussaoui indictment, it also said it was sensitive to the trial judge’s concerns and would look very carefully to ensure that the government made available to Moussaoui all the information he needed to present his defense. What would have happened if Moussaoui had continued to press his demand for access to classified information and testimony from al Qaeda captives like KSM? We don’t know.
If Moussaoui is their shining example of how well the civilian courts handle international terrorism cases during wartime, they’re in trouble.
11/18 11:55 AMShare
Holder’s Testimony [Andy McCarthy]
They are in recess after opening statements and initial rounds of questions. Here are some of the Attorney General’s whoppers so far:
1. The “tragic shooting” at Ft. Hood. What happened at Ft. Hood was a jihadist massacre — a terrorist act, not a tragedy.
2. The civilian justice system has been handling terrorism cases successfully for years. No mention of Mamdouh Salim, the al Qaeda founder who was never brought to trial for 1998 U.S. embassy bombings because he maimed a Bureau of Prisons guard in an escape attempt during which he attempted to kidnap is taxpayer-funded defense lawyers.
3. We can protect classified material because of the Classified Information Procedures Act (CIPA). It is not just classified information that is helpful to terrorist organizations. The list of people who might be identified as unindicted coconspirators that I had to turn over in 1995 was not classified, but it told al Qaeda who was on the government’s investigative radar screen. Moreover, CIPA does not shield all classified information from the terrorists — just the classified information the judge decides is neither discoverable under the rules nor relevant to the trial. If it is discoverable and/or relevant, the defense gets it. And in civilian court, the terrorists can demand to represent themselves (as I explained in this column), so the government can’t shield the classified information from them as it can in the military system (where it can require them to have military lawyers with security clearances in order to get access to the discovery).
In answering Senator Hatch’s questions, Holder emphasized that the coconspirator list in my case was not a classified document (as I explain above). That, however, doesn’t help the attorney general’s argument. To the contrary, it demonstrates that there is a great deal of non-classified information that comes out in a civilian trial, and that gets made available in civilian discovery, that is not classified. This information is still incredibly helpful to the people trying to kill us.
Moreover, the Left always complains that too much information in government is classified. Implicitly, Holder is now suggesting that we classify far more information than we otherwise would to bring it under the protection of CIPA. In addition, CIPA requires that all classified information issues be litigated (including any appeals) prior to trial. If we classify everything, that’s going to require a mammoth pretrial trial and appeal before the actual trial happens. And, even if you did that, CIPA cannot control what goes on in the courtroom once witnesses start answering questions and blurting out information — and once defense lawyers start asking questions about classified information in order to provoke the prosecutors into objecting (defense lawyers often don’t care about the answers to these questions; they ask for the purpose of inducing the prosecutor to object and make the government look like it is hiding important information from the jury).
4. Classified information procedures in the Military Commissions Act, which would apply at military commissions, are “based on” the CIPA that applies in civilian trials. They may be “based on” the CIPA rules, but they are not the same as the CIPA rules. The MCA provisions (Sec. 949(j)(c)) expressly provide for (1) deletions of classified material from discovery documents made available to the accused; (2) the withholding of methods and sources of intelligence collection from the accused; and (3) the deletion of classified information from exculpatory evidence. It is true that, whether you’re in civilian or military court, the executive branch gets the opportunity to propose a substitution (e.g., an unclassified summary of the information) rather than surrender the classified information. But in civilian court under CIPA, the presumption is that if classified information is relevant under the rules of evidence, the accused gets access to it. In military court under the MCA, the presumption is that classified information gets withheld, especially if it involves methods and sources of intelligence.
5. A civilian trial is no more a platform for KSM than a military commission would have been. That’s ridiculous. KSM was ready to plead guilty and be executed eleven months ago. Whatever soapbox he was going to have, he’d largely already had, and while we’d have had to let him speak before sentence was imposed, that would have been the end of it. Now, he’s going to get a full-blown trial — after combing through the discovery for a couple of years and after putting the Bush administration under the spotlight.
Holder derided Sen. Kyl for pointing this out, saying Kyl had no way of knowing what KSM’s position is today. That’s a specious point. We do know what his position was eleven months ago when the Obama administration could have accepted his plea and pushed for his execution. Moreover, why would that still be KSM’s position today, when he now knows Holder is ready to give him the stage in New York that he’s been seeking since the day he was captured?
6. In a civilian trial, America will see KSM for the coward that he is – Holder: “I am not scared of KSM.” Submitting a war criminal to a military commission is not an exercise in fear; it is an exercise in justice. We already know all about what kind of animal KSM is, thanks to the exrtraordinary information that has come out in the military proceedings and the CIA interrogations. You could fill a book a book with it, which the 9/11 Commission did. We don’t need to bear the risks of a civilian trial either to learn more about KSM or so Mr. Holder can show how brave he is.
7. Holder expects to detain the terrorists in federal prisons under Special Administrative Measures (SAMs) to ensure that they do not pose a risk to Americans. In addition to not mentioning Salim (see no. 2, above), the attorney general skipped over the inconvenient fact that his Justice Department just caved in on the SAMs in the case of terrorist Richard Reid.
8. For eight years justice has been delayed — no longer, “It is past time to finally act.” Holder, of course, does not mention the role of his firm and others in delaying and derailing the military commissions during their representation of America’s enemies. Sen. Kyl just confronted him with my contentions on that score (from this column). The attorney-general responded that I am a polemecist who says inflammatory things for talk shows, whereas he is concerned with facts. (I guess he means pertinent facts, like how he is not “scared of KSM.”) I’m delighted to let people judge that one for themselves.
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