Attorney General Eric Holder is countering a Republican-led campaign against civilian terrorism trials by mustering the Obama Administration’s most robust and detailed attempt to date to warn about the potential pitfalls of using military commissions to try war-on-terror suspects.
Speaking to a largely liberal legal group in Washington Thursday night, Holder highlighted what he portrayed as a series of limits and possible impediments to relying on military commissions as a primary or exclusive means for prosecuting alleged terrorists.
Holder noted that, by law, the military commissions cannot try lone-wolf terrorists or anyone who doesn’t hail from Al Qaeda, the Taliban or their affiliates. “That means members of other terrorist groups – such as Hamas, Hizbollah or the FARC – may not be tried in military commissions,” he told the Constitution Project dinner.
The attorney general also observed that commissions cannot “be used against United States citizens like Anwar Awlaki or Jose Padilla, no matter what kind of horrendous acts they might commit.” Holder’s mention of the American-born Awlaki, a cleric who now lives in Yemen and is reported to have inspired the shooting rampage at Fort Hood last year, was unusual since he has not been publicly charged with a crime. Nevertheless, U.S. national security officials are said to have authorized the military and the CIA to use deadly force against him.
Holder also said ordinary courts give the government more options when it comes to fashioning a case. “Our civilian courts cover a much broader set of offenses available than the military commissions, which can only prosecute some violations of the laws of war,” he said. “Prosecutors can also make use of other charges – like making false statements to investigators, passport or document fraud, or firearms offenses – to convict suspected terrorists…..Civilian courts can provide just punishment for a broader range of bad acts.”
Holder also argued that the more than two centuries of federal court precedent give those courts a leg up on the military commissions, whose rules were twice struck down by the Supreme Court in recent years. “Civilian courts….have a reliability that establishes credibility. Although I’m confident we’ve done a good job of reforming and improving military commissions, they do not, yet, have the same time-tested track record of civilian courts,” the attorney general said.
And Holder indicated, diplomatically, that some countries have refused to cooperate with the military commissions. “Our allies are comfortable with the formal and informal mechanisms to transfer terrorism suspects to the United States for trial in civilian court.” he said. “As we prove the effectiveness and fairness of military commissions, I expect our allies will take notice. And I hope they will grow more willing to cooperate with commission trials.”
Holder’s comments about the downside of military commissions came as President Barack Obama prepares to make a decision about what to do with the highest-profile terrorism case of all: the prosecution of five Guantanamo prisoners for plotting the September 11 attacks. Holder announced last November that he was sending the case to the federal court in Manhattan. The White House pulled the plug on that option earlier this year after local officials objected. A new decision on a military commission or a new trial venue for the 9/11 suspects is expected within weeks.
Aides to Holder said the speech was not intended as public lobbying of the White House on the sensitive 9/11 trial issue. “The speech is complimentary of military commissions as an important tool for appropriate cases, but the attorney general thought it was important to point out that in some cases they are not the best forum,” one Holder aide said.
Holder, whose public remarks and decisions have sometimes caused political heartburn at the White House, spoke Thursday from a teleprompter and rarely departed from his prepared text.
Holder’s attempt to point up some of the drawbacks of the military tribunals was a delicate mission, since the Obama Administration continues to rely on the commissions. He acknowledged in his speech that he has sent six cases to military commissions and said he’d probably be sending more.
“There is, quite simply, no inherent contradiction between using military commissions in select cases while still prosecuting terrorists in civilian courts,” Holder insisted. “I have faith in the framework and promise of our military commissions.”
During a hearing on Capitol Hill Wednesday, Sen. Jeff Sessions (R-Ala.) said Holder was leaning too far in favor of civilian courts and against military commissions as a result of an Obama administration policy that Guantanamo prisoners should be brought before civilian courts “where feasible.”
“There's not exactly a clean slate,” Sessions complained.
“It's a rebuttable presumption, and there are a variety of other factors that we take into account, not the least of which is at the end of the day in which form can we be most effective,” Holder replied.
However, Sen. Lindsey Graham (R-S.C.), who is sponsoring legislation to block a civilian trial in the 9/11 case, said at the same hearing that different terror-related cases need to be handled differently, with military tribunals hearing some cases and civilian trials for others. “There are some people who say you can never use Article III courts and I disagree with them,” he said, referring to the Supreme Court and the federal court system.
Several civil liberties and human rights groups are opposing all military trials. During the speech Thursday night, Holder suggested that the Obama administration was charting a sensible, middle-of-the road course between these advocates and those pushing for increased use of the military.
“When it comes to protecting the American people, the charge that we are coddling terrorists is no more accurate than the equally vehement cry that we have heard that we have rubber stamped the Bush Administration’s counterterrorism policies,” Holder said.
While Holder said ruling out civilian trials would lead to failures that would undercut “our fundamental duty to bring every terrorist to justice,” he said Wednesday that the administration plans to hold 48 of the Guantanamo prisoners indefinitely without trial.
The group he spoke to Thursday opposes preventive detention. Audience members applauded as Holder rebutted Republican talking points in his 17-minute speech but were essentially silent when he backed some use of military commissions and endorsed a Bush-era tactic of using fraud and weapons charges to get convictions of terrorism suspects when incriminating evidence of terrorism is lacking.
“One of the biggest things I’ve learned over the last year is that it is simply not possible, as Attorney General, to make everyone happy,” Holder observed.
Key pre-trial hearings are set to get underway later this month at Guantanamo in one of the highest-profile military commission cases, that of Canadian Omar Khadr, who was captured in Afghanistan in 2002 after he allegedly threw a grenade that killed an American Army medic. Khadr’s prosecution has prompted an outcry from human rights groups in part because he was 15 at the time of the incident. He’s now 23.