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Republicans Take Aim at Holder Over Previously Undisclosed Legal Brief

The Senate Judiciary Committee announced that it will hold a Justice Department oversight hearing on March 23. The committee will have an opportunity to question Attorney General Eric Holder

The Senate Judiciary Committee announced that it will hold a Justice Department oversight hearing on March 23. The committee will have an opportunity to question Attorney General Eric Holder, who has been at the center of a number of heated controversies concerning the treatment and trying of suspected terrorists.

The hearing will give Republicans an opportunity to question Holder about a newfound amicus brief from 2004, which he did not disclose during his confirmation. It was filed in the case of Jose Padilla, and argues that the government cannot hold detainees for an indefinite amount of time without charging them.

Furthermore, it argues that even if due process obstructs intelligence gathering, the integrity of the civilian court system must be upheld as a check on the overreaching exercise of power by the executive branch. The brief was signed by Holder, former Attorney General Janet Reno and two other Clinton administration officials.

According to Politico, Justice Department spokesman Matthew Miller said, “the brief should have been disclosed,” but was left out “inadvertently.”

Some Republicans on the Judiciary Committee were not so forgiving.

In an article by Main Justice, Sen. Jeff Sessions (R-Alabama) said, “Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security. This is an extremely serious matter and the Attorney General will have to address it immediately.”

However, Senate Judiciary Chairman Patrick Leahy (D-Vermont) has been vocal in his defense of the Justice Department’s right to hold this trial wherever they deem necessary.

“Since 9/11, federal courts have tried more than 100 terrorism cases, including several high-profile cases with notorious terrorists, proving they can handle sensitive classified information, security, and other legal and logistical issues,” Leahy said in a statement.

“Our courts, our legal system, and our prisons repeatedly have shown they are up to the task. Rather than playing politics with these questions or cowering from criminals, we should trust in the proven successes of a criminal justice system that has become the envy of the world.”

The brief was disclosed amid a large controversy over whether to try Khalid Sheikh Mohammed (KSM), the 9/11 mastermind, in a civilian trial. The White House has signaled that it is reviewing the options put forth by the Justice Department, and may back away from Holder’s initial decision to try Mohammed and his four co-conspirators in federal court.

That decision was also questioned at a hearing Tuesday on the Justice Department’s fiscal 2011 budget request, which Republican members of a subcommittee of the House Appropriation’s Committee used as an opportunity to grill Holder.

Questioned about using civilian courts, Holder vehemently denied that terrorist suspects were being, “coddled,” or treated, in “an inappropriate or special way,” according to a report by Main Justice.

He also testified that the decision on the location of the KSM trial, which President Obama has weighed in on, would be determined in a matter of weeks. He also said that military commissions should be used when appropriate, but that he still preferred civilian courts.

“We remain committed to using all of the tools we have to try to win this war,” Holder said, according to Main Justice.

One Democratic lawmaker, Allan Mollohan (D-West Virginia), came to Holder’s defense. After noting the extensive success in the Bush administration of trying about 300 terrorist suspects in civilian trials, Mollohan said, “The decision about whether to try a case in a civilian court is best left for the Department of Justice to determine, void of politics, just as was done in the previous administration.”

Some experts believe that politics have gotten in the way of the Justice Department’s independence.

“Decisions of this nature should be made based on legal principles and values, rather than political considerations,” said David Frakt, a lawyer who has represented detainees in the prison in Guantanamo Bay, as well as a lieutenant colonel in the US Air Force Reserve and member of the JAG Corps.

Military commissions, “have proven ineffective,” Frakt said, “and susceptible to challenges on many fronts.” He said that proponents of military courts believe that they will render “swift convictions with minimal due process, but that is not true.”

Frakt added that appeals are more frequently sought in military, rather than civilian, courts.

In his personal experience as a JAG lawyer for Guantanamo detainees, Frakt said, “they were making up the rules as they went along. There was no precedent to guide judges or lawyers.”

The result, he said, “was a process far slower than the typical criminal process.”

Frakt represented Mohammed Jawad, who was accused of throwing a grenade at a US convoy in December 2002. Jawad was 12 at the time, and was held from 2003 to 2008, until a military court judge ruled that the charges be dropped because the evidence was obtained through torture. The case was never even brought to trial, and the pre-trial proceedings took two years. Jawad was released in August 2009.

“Those who think this will be quick are deluding themselves,” Frakt said.

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