The Magazine

Obama’s Attorney General (for now)

Eric Holder botches the war on terror.

Feb 15, 2010, Vol. 15, No. 21 • By JENNIFER RUBIN
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I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government. On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action. In the days following December 25—including during a meeting with the President and other senior members of his national security team on January 5—high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

The letter raised more questions than it answered. Most starkly, it conflicts with the testimony of other high-ranking Obama officials that they were not consulted. Were subordinate functionaries (“partners in the Intelligence Community”) informed, but not the key department heads? Did Holder present them with a fait accompli, making the other officials think it was futile to weigh in? Holder was decidedly vague regarding the January 5 conversation, leaving unclear whether others in fact criticized his decision.

Holder’s letter contains other problematic assertions. A Capitol Hill aide noted that while Holder takes responsibility for charging Abdulmutallab in federal court, “he is much more vague about who made the decision to give Abdulmutallab his Miranda warnings.” The aide wonders, “Was the director of the FBI or the attorney general involved? Were any senior intelligence officials consulted? Or, as seems likely, did a lower-level official simply jump the gun, and is the administration now trying to bury that fact, particularly because it might suggest that the AG was out of the loop on Christmas day?”

Holder offers no real argument for favoring a criminal justice approach. Instead, his letter claims that treating Abdulmutallab as a criminal defendant follows Bush administration policy. A former Justice official remarks ruefully, “On Bush, I found it remarkable how [Obama administration officials] are now trying to characterize him as weak and wimpy on terrorism (after all, he used the criminal process for all of these guys), and how they are trying [at the same time] to wrap themselves in [Bush’s] mantle. Quite a turnabout in rhetorical strategy.”

Once again, Holder’s legal exposition is less than compelling. For example, Holder claims the handling of Abdulmutallab was “fully consistent” with prior cases, but his letter refers to Jose Padilla and Ali Saleh Kahlah Al-Marri, two terror suspects captured in the United States, whom President George W. Bush ordered to be transferred to military custody. 

Several lawyers expert in these matters also point out that on Padilla, Holder cites a Second Circuit opinion reversed by the Supreme Court and refers to a Fourth Circuit decision vacated by the High Court. A former Justice official says: “Holder is increasingly looking like a buffoon. In his letter of self-defense, he says it is an open question whether terrorists arrested in the U.S. may legally be detained as enemy combatants, but he relies on a case overturned by the Supreme Court. Then he makes himself seem even more foolish by not mentioning that the court of appeals that ended up deciding that same case ruled that they could be held as enemy combatants. A first-year lawyer would get fired for a dumb error like that.” Nor does Holder acknowledge the military tribunal system put in place by statutes in 2006 and 2009, which provides an alternative to the criminal justice model he vehemently defends.

Holder also relies on the Zacarias Moussaoui case to bolster the argument for a civilian trial, which is also a terrible precedent. That proceeding took four and a half years, and the presiding judge said of the trial, “I don’t think in the annals of criminal law there has ever been a case with this many significant problems.”

Holder’s letter, like his November testimony on the KSM trial, will likely fan the flames of bipartisan criticism. But the president’s decision to distance himself from Holder’s decisionmaking gives Obama room to reverse course, and maybe even to throw overboard the self-proclaimed architect of the bungled plans, none other than Holder himself.

Jennifer Rubin is a contributing editor to Commentary magazine.

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