Attorney General Eric Holder is in the middle of a growing storm of criticism from Republican leaders in Congress, and finds himself without strong backing from a White House that is distancing itself from his initial decision to hold the trial of 9/11 mastermind Khalid Sheikh Mohammed in New York City.
In an interview last Sunday, President Obama said he had “not ruled out” a trial in New York, “but I think it’s important for us to take into account the practical, logistical issues involved. If you’ve got a city that is saying ‘no,’ and a police department that’s saying ‘no,’ and a mayor that’s saying ‘no,’ that makes it difficult.”
Obama also said that the government’s treatment of Mohammed, including the FBI’s decision to read Mohammed his Miranda rights and the Justice Department’s decision to try him in a civilian court, was no different from past treatment of suspected terrorists like Richard Reid the “shoe-bomber” and Zacarias Moussaoui, who wanted to plan another plane attack after 9/11.
“I think the most important thing for the public to understand is we’re not handling these cases any different than the Bush Administration handled them all through 9/11,” Obama said. “They prosecuted 190 folks in these Article III courts [under the Constitution], got convictions, and those folks are in maximum-security prisons right now. And there have been no escapes. It is a virtue of our system we should be proud of.”
Former Alaska Gov. Sarah Palin, in an interview on “Fox News Sunday,” said Holder should resign, “because of the way that we are treating these terrorists and allowing them our constitutional rights when they don’t deserve them.”
Just one week earlier, on the same program, Sen. Lamar Alexander (R-Tennessee) said Holder should “step down” for similar reasons. Last week, a bipartisan group of senators, led by Lindsey Graham (R-South Carolina), introduced a bill that would strip a civilian trial of Mohammed and his four alleged co-conspirators of funding.
According to The New York Times, the White House has ordered the Justice Department to look for alternative trial locations, which the department is “scrambling” to do.
The criticism from Republicans was so severe that Holder sent a strongly worded letter to Senate Minority Leader Mitch McConnell (R-Kentucky), reminding him that “since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.”
As Jane Mayer wrote in a lengthy report published in the latest issue of The New Yorker, Holder met with Senator Graham in an attempt to compromise, but was rebuffed. The article also said that Republican senators withdrew their support to close Guantanamo Bay and move the detainees to a facility in the United States as a result of Holder’s decision not to try Mohammed in a military court.
The political wrangling over the location of the trial has some experts concerned that the White House is exerting undue influence on legal decisions by the Justice Department.
“When Republicans say that they want KSM tried in a military tribunal, the president could say that he’s simply not interested in the views of politicians on where to try criminals in court,” said Jonathan Turley, a liberal law professor at George Washington University and an expert on homeland security and constitutional law.
Political calculations with regard to the handling of detainees and suspected terrorists are not a new issue. Greg Craig, Obama’s former White House counsel, resigned in January after repeated conflicts with Chief of Staff Rahm Emanuel over how to handle the closing of Guantanamo Bay and other counterterrorism policies that Emanuel viewed as political liabilities.
Emanuel also opposed, indirectly, an investigation by Holder into allegations of torture and war crimes by Bush administration officials and officials in the intelligence community. According to an unnamed source in The New Yorker article, Emanuel said, “didn’t he get the memo that we’re not litigating the past?”
Turley said that these decisions are representative of the president’s approach to addressing allegations of human rights abuses and circumventions of the rule of law by the Bush administration.
“The Obama Administration seems pathologically opposed to taking a position on pure principle,” he said. “Obama needs to lead on these issues. We’re talking about violations of domestic and international law. We’re talking about basic issues concerning the rule of law. And the President can lead by refusing to give in to political pressure.”
David Axelrod, chief adviser to President Obama, addressed critics of the administration in an interview on “C-SPAN” Sunday. “We haven’t invested anybody with one more right than they had before we took office,” he said. “And we’re actually not behaving any differently than the last administration, which raises the question, ‘is this about politics, or is it really about dealing with the issue at hand?'”
Emanuel, though, according to Axelrod, has a right to have a voice in the way the Justice Department handles these decisions, despite laws that prevent political intervention in prosecutorial practices.
“Rahm has a perspective that’s different,” Axelrod said. “He’s the chief of staff, he looks at things from a legislative perspective.”
Axelrod also defended Holder’s decision to try Mohammed in a civilian court. “The Attorney General was responding under the protocol that was developed between the Department of Justice and the Department of Defense for the prosecution of terrorists, and he made the decision on that basis,” Axelrod said.
In an interview with The New Yorker’s Jane Mayer, Holder addressed critics who say that the Justice Department and the Obama administration are soft on terror. “This macho bravado – that’s the kind of thing that leads you into wars that should not be fought, that history is not kind to,” he said.
“The quest for justice, despite what your contemporaries might think, that’s toughness. The ability to subject yourself to the kind of criticism I’m getting now, for something I think is right? That’s tough.”