Published on
The Washington Independent

Holder Defends 9/11 Civilian Trials, Defuses Critics

Sets Confrontational Tone as Critics Back Down

Spencer Ackerman

Attorney General Eric Holder testifies before the Senate Judiciary Committee on Wednesday. (James Berglie/

Eric Holder stepped into the Dirksen building this morning an
embattled man facing Republican members of the Senate Judiciary
Committee fiercely critical of his desire to try Khalid Shaikh Mohammed
and the other 9/11 conspirators in federal court. He left three hours
later having defused some of his critics; conceding little; sticking up
for his department's role in counterterrorism; and placing back onto
the table the prospect of a New York trial for the man known as KSM.

For months, Holder and his Justice Department have been at the
center of conservative ire at the Obama administration's national
security policies. Sen. Mitch McConnell (R-Ky.) called
Holder out in a caustic February speech
for playing an unduly
influential role in counterterrorism, evidenced by Holder's contentions
that KSM and would-be Christmas bomber Umar Farouk Abdulmutallab should
be tried in civilian courts. Sen.
Jeff Sessions (R-Ala.) and Sen. Chuck Grassley (R-Iowa.)
, both
Judiciary Committee members, have portrayed administration lawyers who
defended Guantanamo detainees as possessing shadowy, un-American
loyalties, and an ad building on their statements dubbed the lawyers "the
al-Qaeda Seven
." Sen. Lindsey Graham (R-SC) has spent months
working on a deal with the White House to trade GOP support for closing
the Guantanamo Bay detention facility in exchange for overriding
Holder and trying KSM before a military commission.

But Holder did not appear under fire during his first Senate
testimony since the KSM controversy swelled. More often, it was his
critics who backed down, conceded rhetorical territory or disagreed
among themselves. "There's been a lot of misinformation placed out
there," a confrontational Holder testified. "Without casting aspersions
on anyone in this room, there's been a lot of unnecessary
politicization of national security issues that I don't believe has
benefited this country."

Holder reminded the committee that civilian courts have convicted
"close to 400″ individuals on terrorism charges, compared to three in
military commissions - though Holder, adapting a phrase of Graham's,
said he would be "flexible, pragmatic and aggressive" in keeping both
the commissions and the civilian courts as options for terrorism
trials. That caused Sessions, who sought to portray Holder as an enemy
of the commissions, to assert: "It's pretty clear to me you made a firm
decision to go the other way, with civilian courts with all these
other cases." Holder replied that he had referred more terrorism cases -
six, to be specific - to the military commissions than he had to the
civilian courts. Similarly, when Sessions attempted to get Holder to
say he'd favor reading Miranda rights to Osama bin Laden, Holder
answered that there would be no need, since the government has more
than enough information at present to convict bin Laden of terrorism

"I acknowledge that's possible," Sessions said.

That set the tone for Republican parrying with Holder. Grassley said
he never intended "to call into question the integrity of any employee
of the department" when requesting the names of department lawyers who
represented Guantanamo detainees. Holder called the "al-Qaeda Seven"
ad "reprehensible, and said that he would not participate in an effort
to "tarnish the patriotism" of attorneys who "did what John Adams did"
by defending hated clients. Grassley did not press the issue.

Graham found himself more in agreement with Holder than with
Sessions. He portrayed himself as a Republican who doesn't "reject all
[civilian] courts" for terrorism cases, an implicit knock at his GOP
colleagues. After Holder conceded
that 48 detainees from Guantanamo Bay were "not feasible to transfer
[and] too dangerous to prosecute," the
two men found themselves in substantial agreement
over designing a
system of indefinite detention with annual administrative review in
addition to permitting detainees to receive habeas corpus hearings
before federal judges. Notably, while Sessions
contended that military commissions could better protect classified
information than civilian trials
, Graham - as of February, a
leading proponent of that view - did not. It was easy to forget that
Graham and Holder have spent months on either side of the issue of
whether Khalid Sheikh Mohammed deserves a civilian trial.


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On that issue - one in which both civil libertarians and
conservatives have awaited Holder's testimony to see if he would accept
a military commission - Holder did not give any ground. "No final
decision has been made about the forum in which Khalid Sheikh Mohammed
and his co-defendants will be tried," Holder said, predicting a
decision would not be made for "a number of weeks." Pointedly, he added
that "New York is not off the table" as a possible location for a
trial, even though many New York politicians have objected to the trial
and called for it to be moved - objections that in January raised the
prospect of scuttling civilian trials for the 9/11 conspirators
altogether. When Sen. Chuck Schumer (D-NY) urged Holder not to hold the
trial in New York, Holder said the Obama administration would "take
into consideration, obviously, the expressions of the political
leadership" in the state but indicated those objections aren't
decisive, adding that it would also consider "what we are able to glean
from the population" about support for the trial.

Holder's steadfastness on the trial won him plaudits from civil
libertarians. "I was glad to see Holder standing strong against the
Republicans trying to beat the administration over the head with
closing Guantánamo and using civilian trials," Vince Warren, the
executive director of the Center for Constitutional Rights, said in a
statement. "If the U.S. is ever going to regain credibility in the
world, the administration can't let itself be bullied by fear mongers
with their eyes on midterm elections rather than the law."

But Holder's embrace of military commissions and indefinite
detention without charge cast a pallor on their enthusiasm. "I'm not
sure about Holder. Some of the folks I know and respect at DOJ think
very highly of him," said ret. Air Force Col. Morris Davis, the former
chief prosecutor of the military commissions at Guantanamo Bay, in an
email. "On the other hand, what I've seen on the national security
front - basically adopting the same Bush-Cheney policies candidate
Obama was firmly against - has been disappointing. I used to get
perturbed when the ‘flip-flop' accusation got thrown around, but it's
hard to argue that the label doesn't fit the administration's waffling
view that military commissions are bad, no they're good, no they're bad
again, oh wait maybe they're good after all approach."

Democrats on the committee rallied to Holder's defense. "I've come
to the conclusion that some of the attacks are to diminish you, and you
should remain strong," said Sen. Dianne Feinstein (D-Calif.).

Sen. Sheldon Whitehouse (D-RI), a former Rhode Island attorney
general and federal prosecutor, tacitly compared Holder's critics to a
mob, a resonant image after The New Yorker recently reported
that a January New York rally of conservatives against the KSM trial
featured someone yelling, "Lynch Holder!"

"The emblems of American justice," Whitehouse said, are "the
blindfold and the balance, and not the torch and the pitchfork."

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