The attorney general tries to sell us on New York terror trials.

The attorney general tries to sell us on New York terror trials.

The attorney general tries to sell us on New York terror trials.

The law, lawyers, and the court.
Nov. 18 2009 6:12 PM

Holder Laughed

The attorney general tries to sell us on New York terror trials.

Eric Holder. Click image to expand.
Eric Holder 

There are good arguments against trying Khalid Sheikh Mohammed and his alleged co-conspirators in a federal New York Court. Testifying this morning before the Senate judiciary committee, Attorney General Eric Holder addressed most of them.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

What Holder could not answer were the questions suggesting that he or members of his Justice Department actually opted to try KSM and his colleagues in New York because they want dangerous terrorists to go free. That one is beyond crediting. So Holder laughed.

Holder explained that while military commissions had produced only three convictions, 300 international and domestic terrorists are in custody following civilian trials in federal court, including the men responsible for the 1993 World Trade Center bombing and attacks on U.S. Embassies in Africa. Holder addressed the problem of keeping classified information secret and the contention that Khalid Sheikh Mohammed would have an open mic at his trial to spew hate. He described security measures that will keep New Yorkers safe. But, try as he may, what Holder could not promise the committee was that the federal criminal trials will end in a conviction and execution. For some of the senators on the committee, that just wasn't good enough.

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Let's think about this for a minute. Imagine a hearing in which the attorney general stood before the American people and swore under oath that he would personally guarantee the vote of every juror, control every piece of evidence, and supervise the decisions of every federal judge. Such legal systems have existed throughout history and still exist today throughout the world. Until recently, they may well have existed at Guantanamo, or so said the military prosecutors who refused to take part in President Bush's military commissions there because of the pressure to deliver slam-dunk convictions. So you see, the central problem of the American legal system—didn't we once believe this to be its central virtue?—is that a death sentence just cannot be fixed in advance of the trial.

Holder used his opening statement to answer Rudy Giuliani and the Sunday talk show guests who have suggested that the Obama administration is giving the terrorists everything they wished for. Responding to the argument that KSM shouldn't have a national platform to spew hate, he echoed Steven Simon of the Council on Foreign Relations, who argued in today's New York Times that "if the trial provides a propaganda platform for anybody, it will be for our side." Said Holder, "If Khalid Sheikh Mohammed makes the same statements he made in his military commission proceedings, I have every confidence the nation and the world will see him for the coward he is. I'm not scared of what Khalid Sheikh Mohammed will have to say at trial, and no one else needs to be either."

Holder debunked claims that the earlier civilian terror trials resulted in a wealth of secret intelligence, notably a list of unindicted conspirators and information about Osama Bin Laden's use of cell phones, which are alleged to have benefitted him. (Rush Limbaugh now contends the 1993 trial somehow caused 9/11.) Holder explained, to the contrary, that the list of Sheikh Abdel-Rahman unindicted conspirators turned over during the trial of Abdel-Rahman was never classified. Prosecutors could have sought a protective order for it and didn't. Holder also explained that despite widespread claims that the cell phone records were produced long before, they surfaced only in the embassy bombing trial in December of 1998 and were not disclosed in court until March 20, 2001. Bin Laden had stopped using his cell phones in October of 1998, before they came out at trial.

Sen. Richard Durbin, D-Ill., pointed out that America didn't go into meltdown when the Bush administration opted to try Zacarias Moussaoui, the alleged 20th hijacker in Virginia, just miles from the 9/11 crash site at the Pentagon. The trial happened. Moussaoui ranted. The conviction happened. Moussaoui is in jail. He looks likely to stay there. So what's different this time?

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Holder wobbled under questioning from several committee Republicans on the line between prosecution in the federal courts and in military commissions. He was bruised by questioning from Sen. Lindsey Graham, R-S.C., on the implications of shifting to the former. Graham asked: "Can you give me a case in United States history where an enemy combatant caught on a battlefield was tried in civilian court?" Holder could not. Graham even seemed to have stumped Holder on the question of whether Osama Bin Laden would need to be read a Miranda warning if he was captured: "Would you read him his Miranda rights? Would you get him a lawyer?" Holder waffled.

Holder did his level best to promise that he would deliver convictions. He testified that "failure is not an option" and that "these are cases that have to be won." He even promised that if any of the five are acquitted, under new congressional rules they would not be released in the United States. That still wasn't good enough for Sen. Charles Grassley, R-Iowa, who said, "I think a lot of Americans thought O.J. Simpson oughta [have] been convicted of murder rather than being in jail for what he's in jail for."

What Holder could not possibly answer for today was the claim that his Justice Department ostensibly wants to help the terrorists. This is hardly a new trope. But today offered a new twist: Holder was called out for harboring just such terror-lovers as, well, himself. Grassley demanded that Holder explain the presence in the solicitor general's office of Neal Katyal, who represented Osama Bin Laden's driver at the Supreme Court. Grassley used a smear  from the New York Post (penned by the writer who ridiculously claimed Yale Law School Dean Harold Koh believed "Sharia law could apply to disputes in US courts") to demand that Holder account for Jennifer Daskal as counsel in its National Security Division, who allegedly wants terrorists to have more time to write poetry. Grassley demanded that Holder produce a list of DoJ appointees who have ever acted as lawyers for terror detainees.

Then John Kyl, R-Ariz., read from an editorial suggesting that the reason these detainee trials have been so long delayed is all the "leftist lawyers" who stalled the military commissions by challenging them in the courts. Kyl noted many of those lawyers—including Holder—work for the Justice Department despite the fact that Holder's firm, Covington & Burling, "volunteered its services to at least 18 of America's enemies in lawsuits they brought against the American people." Remember in 2006 when the deputy assistant secretary of defense for detainee affairs, Cully Stimson, had to resign his position at the Pentagon for urging U.S. corporations to boycott any law firm that defended terror suspects? Apparently those law firms are still un-American, and anyone associated with them should be barred from DoJ. (The subtext for much of this criticism, as Sen. Sheldon Whitehouse, D-R.I., observed, is that all these lawyers are somehow in it for the money.)

When Kyl asked his question about all of the terror-defenders at Justice, Holder just blurted, "Hah." Then he said, "I don't even know where to begin, other than to say that the vast majority of the time in which these matters were not brought to trial, to fruition, happened in the prior administration." He added that it was "the Supreme Court—not a group of leftist lawyers" that stalled the commissions. He said it was a Congress not "peopled only with leftist lawyers" that fixed the commissions.

Reasonable people can differ on whether the acts of Sept 11, 2001, were crimes to be handled in court or acts of war to be tried by military tribunals. Experts will never agree on whether criminal trials make us safer or less safe. The 9/11 families also remain split on whether trials or commissions are appropriate. But when you continue to hear that anyone who objects to Bush's detainee policies is unworthy to serve in government, or is part of some elaborate conspiracy to free terrorists, there is truly nothing left to do but laugh.