Eric Holder, American Justice, and the Rule of Law

Let me start with a disclaimer: I personally know and like Eric Holder. He was my boss for three-and-a-half years in the 1990’s when I was an Assistant United States Attorney in Washington, D.C. Before that, he was a well-respected D.C. Superior Court Judge in whose courtroom I appeared on several occasions. He is extremely smart, funny, personable, and sincere. Anyone who has ever worked for him knows first-hand of his public-spirited desire to do what is right and just, consistent with the rule of law and the Constitution.

Holder is under attack by conservative politicians and media pundits for three principled, but controversial decisions. In August, he appointed a special counsel to review whether CIA operatives violated any laws in approving or implementing torture during interrogations of military detainees. In November, he ordered that Khalid Sheikh Mohammed (and four others) be tried in federal court, rather than before a military tribunal, for the terrorist attacks of September 11, 2001. And in December, he decided to charge criminally, rather than treat as an enemy combatant, Umar Farouk Abdulmutallab, the alleged “Christmas Day bomber,” who was apprehended after his failed attempt to detonate a bomb in a plane over Detroit.

Charles Krauthammer has declared Holder’s actions “almost criminal.” Senator Lamar Alexander called for Holder to “step down” for failing to distinguish between “terrorists who are flying into Detroit, blowing up planes, and American citizens who are committing a crime.” Rudy Giuliani, who like Holder is a former U.S. Attorney (and should therefore know better), has ridiculed Holder’s decisions to allow Mohammed a fair trial and Abdulmutallab an opportunity to consult with counsel. Dick Cheney has accused Holder of giving “aid and comfort to the enemy.” The list goes on.

It requires only a basic understanding of the facts and of U.S. and international law to realize that Holder’s decisions were correct and that the criticisms against him are nothing but shameful political grandstanding of the most dangerous kind. First, Holder’s decision to treat Abdulmutallab as a criminal suspect had the consent of the FBI, the CIA, and the Pentagon, and the government's handling of the case is consistent with every previous case involving a suspected terrorist apprehended inside the United States. Krauthammer’s fantasies notwithstanding, no law authorizes the U.S. military to seize criminal suspects inside this country and hold them without charge at a military detention camp. Every person arrested in the United States, citizen or non-citizen, whether here legally or illegally, and whether charged with shoplifting, murder, terrorism, or espionage, is entitled to the protections of the U.S. Constitution. It is what makes America a shining example of freedom and democracy to the world.

That the Bush Administration handled two terrorism cases (Jose Padilla and Ali Saleh ahlah al-Mari) differently than Holder handled the Abdulmutallab case, proves that Holder made the right call. Padilla and al-Mari had been arrested in the United States by law enforcement officials and criminally indicted. Both men were subsequently declared “enemy combatants” by President Bush and transferred into military custody, where they were detained without trial and held for long periods of interrogation. Following legal challenges, U.S. courts in both cases found that the government had exceeded its lawful authority. Bush subsequently relented and returned Padilla and al-Mari to federal court, where they were convicted and sentenced.

Ironically, no useful intelligence was gained from either Padilla or al-Mari while held in military detention. By contrast, Abdulmutallab immediately confessed and provided useful intelligence to FBI agents who questioned him for fifty minutes under the “public safety exception” to the right to remain silent. He is now cooperating extensively with the government in the course of his criminal case. That he was Mirandized and provided with counsel has not prevented him from further cooperating. In federal criminal cases, defendants routinely cooperate in the hope of obtaining a more lenient sentence. A carrot often carries more weight than a stick.

Holder’s decision to try Khalid Sheikh Mohammed in federal court on the 9/11 terrorism charges is no different than how U.S. administrations from Reagan onward have treated most such cases for nearly thirty years. The official policy of the Reagan administration, which contended with numerous terrorist acts in the 1980’s (e.g., the bombings of the Marine barracks in Beirut and of U.S. Embassies in Beirut and Kuwait; the bombing of Pan American Flight 103; the hijacking of Achille Lauro) was explained by L. Paul Bremer III, Reagan’s Ambassador-at-Large for Counter-Terrorism, during a speech before the Council of Foreign Relations in November 1987:

Another important measure . . . in our overall strategy is applying the rule of law to terrorists. Terrorists are criminals. They commit criminal actions like murder, kidnapping, and arson, and countries have laws to punish criminals. So a major element of our strategy has been to delegitimize terrorists, to get society to see them for what they are -- criminals -- and to use democracy’s most potent tool, the rule of law against them.

The Reagan administration got it right. All of these miscreants – Mohammed, Abdulmutallab, Zacarias Moussaoui, Richard Reid (the “shoe bomber”) – are nothing but common criminals. They deserve to be treated like any other criminal (albeit with added security measures and certain case-specific protective orders). They deserve a fair trial and, once the evidence proves them guilty, to be imprisoned or sentenced to death. Elevating them to a special status adds only to their mystique and gives them the status of hero and martyr among their fellow jihadists.

Circumventing the rule of law, or treating suspected terrorists as “enemy combatants,” holding them without charge, denying them a trial, or not allowing them to consult with counsel serves only to undermine the Constitution and the very foundations upon which our democracy rests. In 2006, the U.S. Supreme Court ruled in Hamden v. Rumsfeld that the Bush administration’s makeshift military commissions were illegal. These specially created tribunals permitted military judges to exclude detainees and their civilian counsel from major portions of their trials, and to prohibit them from ever learning of the evidence against them during those portions. The rules also allowed military prosecutors essentially to offer any evidence in support of the charges, including hearsay, unsworn statements, and coerced confessions. In a decision by Justice Stevens, the Supreme Court held that the commissions violated the American common law of war, the Uniform Code of Military Justice, the “rules and precepts of the law of nations,” and the Geneva Conventions. By so deviating from past practices, and by not trusting our system of laws and justice, President Bush greatly damaged our credibility and standing in the world.

The federal court system is simply better equipped, in most cases, to handle these trials. It has been the venue for international terrorism cases since President Reagan authorized them in the 1980’s, and for other terrorist cases long before that. Federal prosecutors have at their disposal a wide array of criminal statutes, all with very clear sentencing guidelines, which can reach not just the terrorists themselves, but anyone who provides material support for, or who aids and abets, the terrorists. According to a study by NYU Law School, since 2001 U.S. criminal courts have convicted over 150 suspects on terrorism charges, while Bush’s military commissions have convicted just three, two of whom were since released and returned to their native countries while Bush was still president. Ali Hamza al-Bahlul, a former al-Qaeda propaganda chief, received a life sentence after he boycotted his military commission trial. The other two, Salim Hamdan, Osama bin-Laden’s former driver and confidante, and David Hicks, an Australian who joined al-Qaeda, served sentences of six months and nine months, respectively (over the time already served in custody), before being returned to their native countries. (For a terrific article on these matters, see Jane Mayer’s recent piece in The New Yorker.)

Two cases in particular show the distinctions between the federal criminal system of justice and that of military commissions – John Walker Lindh and Yaser Hamdi. Lindh, known as the American Taliban, and Hamdi, a Saudi-American, were both captured in Afghanistan in 2001. Lindh was charged criminally and pleaded guilty in federal court. He is now serving twenty years in prison. Hamdi was declared an enemy combatant and was held in military detention without charge. After a court challenge, in 2004 he was released, and he is now living in Saudi Arabia.

Holder has been the subject of right-wing attacks ever since he authorized a special counsel to review cases of torture committed by CIA operatives to determine if any U.S. laws were violated. Yet it was Ronald Reagan who signed the Convention Against Torture in 1988, which not only declared that there exists "no exceptional circumstances whatsoever" justifying torture, but also required all signatory countries to "ensure that all acts of torture are offenses under its criminal law." Reagan wanted each signatory country "either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution." As Glenn Greenwald of Salon.com explains, the policies of Ronald Reagan no longer pass muster with today's conservative critics:

The express policies of the right-wing Ronald Reagan -- "applying the rule of law to terrorists"; delegitimizing Terrorists by treating them as "criminals"; and compelling the criminal prosecution of those who authorize torture -- are now considered on the Leftist fringe. Merely advocating what Reagan explicitly adopted as his policy -- "to use democracy’s most potent tool, the rule of law against" Terrorists -- is now the exclusive province of civil liberties extremists. In those rare cases when Obama does what Reagan's policy demanded in all instances and what even Bush did at times -- namely, trials and due process for accused Terrorists -- he is attacked as being "Soft on Terror" by Democrats and Republicans alike. And the mere notion that we should prosecute torturers (as Reagan bound the U.S. to do) -- or even hold them accountable in ways short of criminal proceedings -- is now the hallmark of a Far Leftist Purist. That's how far we've fallen, how extremist our political consensus has become.

Holder is hardly an ACLU activist. To the disappointment of many civil libertarians, Holder has not ruled out the use of military commissions (which have been reformed with added procedural and evidentiary protections). Indeed, the same day Holder announced that Mohammed and four others were to be tried in federal court for the 9/11 attacks, he also announced that five detainees would be tried before a military commission for the U.S.S. Cole bombings off the coast of Yemen in 2000. Holder deemed it important that “we be able to use every forum possible to hold terrorists accountable for their actions.” He explained that whether to proceed in federal court or before a military commission in a particular case is to be determined based on protocols established by the Departments of Justice and Defense, which look at “the nature of the offense, the location in which the offense occurred, the identity of the victims, and the manner in which the case was investigated.”

Holder has appropriately balanced the Constitution, the rule of law, and our nation’s security. He recognizes that not every case fits within the four corners of the traditional federal criminal case, but he properly insists that we proceed in every case with a fair, just, and effective mechanism for charging and trying all who wind up in U.S. custody. As Ali Soufan, a former FBI special agent who specialized in terrorism cases, said recently in the New York Times:

Military commissions do serve an important purpose. We are at war, and for Qaeda terrorists caught on the battlefield who did not commit crimes inside the United States, or who killed American civilians abroad, military commissions are appropriate. But for terrorists like Khalid Shaikh Mohammed, who plotted to murder the innocent on United States soil, federal courts are not only more suitable, they’re our best chance at getting the strongest conviction possible.

Critics suggest that trying suspected terrorists in federal court will provide an “intelligence bonanza” to al-Qaeda, because criminal trials require that the government disclose its evidence to the defense and present it in open court. This concern is unfounded. The Classified Information Procedures Act, passed by Congress in 1980, allows the government, with the court’s consent, to withhold classified information, produce summaries or redacted versions, and disclose such information only to defense lawyers with high-level security clearances. Prosecutors routinely invoke this law during terrorism and espionage trials.

Critics also contend that, particularly in Mohammed’s case, a trial will allow terrorism defendants the ability to stand on a soapbox and spread jihadist propaganda. This concern is misplaced. First, federal courts do not permit photography, live broadcasts, or video recordings, so the circus-like atmosphere of an O.J. Simpson trial simply does not occur in federal court. Second, like military judges, federal judges have the authority to gag or remove defendants who attempt to disrupt the trial. Third, and most importantly, a public trial allows the world to see American justice at its best, to the great detriment of the terrorists. As Steven Simon of the Council of Foreign Relations put it in a November 2009 op-ed in the New York Times:

…Instead of Khalid Shaikh Mohammed making his case, we will see the full measure of the horror of 9/11 outlined to the world in a way that only methodical trials can accomplish. Historically, the public exposure of state-sponsored mass murder or terrorism through a transparent judicial process has strengthened the forces of good and undercut the extremists. The Nuremberg trials were a classic case. And nothing more effectively alerted the world to the danger of genocide than Israel’s prosecution in 1961 of Adolf Eichmann, the bureaucrat who engineered the Holocaust.

By contrast, indefinite incarceration without trial, or a military proceeding closed to the public followed by an execution, will only inspire militant jihadists. Transparency, fairness, due process, and the ideals of our Constitution are what strengthens America’s reputation and weakens the influence of radical Muslim clerics and others in the jihadist base.

The purpose of a criminal trial is not to suppress a political message, but to put forth a better message – that we believe in our judicial system, our Constitution, and the force of our laws. A federal trial for Mohammed and other suspected terrorists speaks volumes to what we stand for as Americans: justice, fairness, due process, and commitment to the rule of law. A system that permits secret trials, or no trials, or abridged trials that permit unreliable evidence and that has none of the basic procedural protections of American jurisprudence, is not a system worth defending.

It is notable that other countries victimized by major terrorist attacks over the last several years, including Britain, Spain, India, and Indonesia, have successfully tried and convicted the perpetrators of those terrorist acts in their civilian court systems, in the very cities in which the terror attacks occurred. These countries saw no need to invent special military commissions to short-circuit due process or to hold accused terrorists without trial. They acted in the spirit of the Reagan administration’s policies, to “use democracy’s most potent tool, the rule of law against them.” Why should the United States act differently?

It is disheartening to see so many people willing to throw away the Constitution’s basic rights. If Mohammed and his cohorts are guilty, as were Moussaoui and Reid and the 150 other terrorists we have convicted in federal court, then let us demonstrate it in a trial the world can judge as fair and just. Detaining people without charging them, without allowing them reasonably to defend themselves, and without giving them a fair trial – no matter the nature of the alleged crimes – is not the American way, is not justice, and is not a legal system worthy of this great nation.