Attorney General Eric Holder has been the Obama administration’s point man in revising the nation’s approach to terrorism. Holder said last summer that it was his decision to reinvestigate CIA operatives who had employed enhanced interrogation techniques during the Bush administration, although these individuals had been cleared by the Justice Department’s career prosecutors. It was Holder’s call, the president said, to try Khalid Sheikh Mohammed (KSM) in a New York courtroom rather than before a military tribunal. And Holder, in a letter this past week, took responsibility for the decision to mirandize the Christmas Day bomber, Umar Farouk Abdulmutallab, and classify him as an ordinary criminal defendant rather than an enemy combatant.
There is doubt whether Holder was acting independently in all these critical decisions, and whether the White House would not, at the very least, have weighed in. Either way, Holder has become the president’s Achilles’ heel, a lightning rod for critics and a headache for supporters.
Defending his KSM decision, Holder appeared ill-prepared in Senate testimony last November. A fumbling attorney general was stumped by Senator Lindsey Graham’s questions probing what other enemy combatant seized on foreign soil had been tried in federal court. The answer, after a painful pause, was supplied by Graham: There has never been one. Nor did Holder rule out mirandizing Osama bin Laden if he were captured.
It is not merely poor preparation that has plagued the nation’s top law enforcement figure. As New York City mayor Michael Bloomberg and a bipartisan parade of senators came forward objecting to KSM’s trial in Manhattan, it became evident Holder had failed to consult with city officials before announcing the decision. New York Police Department chief Ray Kelly revealed, “There was no consultation . . . with the police department. That decision was made. We were informed.” Bloomberg then blasted away: “It would be great if the federal government could find a site that didn’t cost a billion dollars. . . . It’s going to cost an awful lot of money and disturb an awful lot of people. . . . Yeah, and I mean—the suggestion of a military base is probably a reasonably good one.” Some 18 senators then joined in proposing legislation to block a civilian trial.
Holder, in short, utterly failed to build support for what he bragged would be the “trial of the century.” Even liberal pundits were left sputtering that Holder had botched what was to be the showcase for the criminal justice approach to fighting terrorism.
Holder is now on the hot seat for his decision to mirandize Abdulmutallab, indict him in federal court, and permit him to remain silent for weeks. One by one, Secretary of Defense Robert Gates, Secretary of Homeland Security Janet Napolitano, and Director of National Intelligence Dennis Blair testified that this was not their call and that they had not been consulted by Holder before Abdulmutallab’s legal status was determined.
Meanwhile Holder stonewalled. He refused to answer multiple letters from lawmakers about the decision to mirandize Abdulmutallab or the Justice Department’s policy for handling captured terrorists. Alabama Republican Jeff Sessions, the ranking minority member of the Senate Judiciary Committee, released a statement last week decrying Holder’s lack of responsiveness. “We have been asking the Attorney General questions on behalf of the American people. He has not simply shut us out; he has also shut out the public.” And in a February 3 speech, Senate minority leader Mitch McConnell articulated the growing unease over allowing a “law enforcement mentality [to] intrude into military and intelligence operations” and over Holder’s reticence to explain the administration’s policies to Congress.
That same day, in a letter to McCon-nell, Holder finally pulled back the curtain a bit. He defended his handling of the Christmas Day bomber as consistent with “the long-established and publicly known policies and practices of the Department of Justice.” He pronounced himself confident “that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.” He then asserted:
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.