Holder: Facts, not fear

By Melina Milazzo
Pennoyer Fellow, Law and Security Program

In a hearing yesterday before the House Appropriations Subcommittee on Commerce, Justice, Science, and other Related Agencies, Attorney General Eric Holder held firm that facts, not fear must be the basis of our discussion in determining how to prosecute detainees and terrorist suspects.

“We cannot allow politics of fear to drive us apart,” Holder said in his opening remarks. “Today, our challenge is to remain not only safe but also true to our heritage, true to our principles and true to our best selves.”

Holder articulated that history and experience show that civilian courts are tested, tried, secure, and able to guard secret information, and therefore, are a viable and necessary tool in fighting global terrorism. Highlighting the benefits of using Article 3 trials over military commissions, Holder noted that our allies support civilian trials over military commissions, we are able to obtain cooperation and critical intelligence from terrorist suspects, and civilian trials, unlike military commissions, accept guilty pleas in capital cases.

Both Holder and Chairman Mollohan also underscored that hundreds of terrorists have been effectively tried and convicted in civilian courts. Indeed, Human Rights First found article 3 courts have convicted 195 self-described Islamic terrorists while the military commissions have convicted only 3, 2 of whom are now free.

Moreover, Holder dispelled misperceptions which he characterized as “make [his] blood boil.” First, he cited studies that demonstrate how a substantial number of people continue to talk even after being provided a lawyer. Defense lawyers, he stated, often advise their clients of the benefits of talking such as, receiving reduced sentences. Frequently, he stated, “the defense lawyer helping his client, also helps the government.” Also, he challenged his critics to point to proof that military commissions would provide better or more information. Finally, he countered the claim that Article 3 courts will be a forum for defendants to spout hateful propaganda giving examples of instances such as in the recent case of terrorism suspect Siddiqui where the judge removed the defendant from the courtroom after she was deemed disruptive.

Chairman Alan Mollohan and Rep. Adam Schiff criticized the politicization of these issues by highlighting how similar decisions under the Bush Administration were not denounced by these same critics. “Former officials from the last administration also support the civilian trial option and believe that precluding civilian trials out of hand is a dangerous proposal,” said Mollohan. “The decision about whether to try a case in a civilian court is best left to the Department of Justice to determine, void of politics, just as was done in the previous administration.” Rep. Schiff echoed this sentiment, suggesting that critics’ arguments were based in politics, not policy. Attorney General Ashcroft under Bush, he noted, was not criticized for deciding to Mirandize the so-called shoe bomber. In fact, Ashcroft has reportedly stated that holding civilian trials for terrorists has “use and utility.”

Holder received support for his initial decision to try Khalid Sheikh Mohammed, the alleged 9/11 mastermind, in New York City. Rep. Chaka Fattah characterized avoiding a civilian terror trial in a major city as “cowardly.” “It doesn’t befit a great nation to hesitate or equivocate on the question of following our own laws,” he said. Rep. José Serrano added, “I thought it was very dramatic to say, ‘We’re not afraid of you. We will try you at the scene of the crime.’”

In response to Rep. Frank Wolf asking when a decision will be made regarding where to try KSM, Holder responded he is “weeks away from making a determination.”

Finally, in a heated exchange with Rep. John Culberson, Holder fiercely fought back against the claim that a law enforcement approach suggests that the Administration does not understand that we are at war. “I know we are at war,” said Holder. “Let me make this very, very clear. If you were to take away from the Justice Department, from this government, from this administration and subsequent administrations the ability to use Article 3 courts, you would weaken our ability to fight successfully these wars. It is as simple as that.”

Attorney General Holder is scheduled to appear before the Senate Judiciary Committee on March 23rd. Let’s hope he stands firm in pushing back on the fearmongering again then. And that the decision we see from the Obama administration on trials for the 9/11 defendants in the coming weeks is one that brings them to justice – in federal court.


Published on March 17, 2010


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