At the Senate Judiciary Committee hearing this morning, Sen. John Cornyn asked Attorney General Eric Holder about the decision he announced Friday to try some detainees, including the 9/11 plotters, in Article III courts: "Does the president agree with you?" Holder's response: "I believe he does. I have not spoken to him directly, but the decision I made is consistent with his Archives speech..."
This is ridiculous. This decision has national security, foreign policy, intelligence, and homeland security implications, as well of course as legal aspects. The idea that the Attorney General would decide how to deal with the mastermind of 9/11 without talking directly to the president is unbelievable. Either Holder isn't telling the whole truth here, and he got guidance indirectly-if not "directly"-from his boss. Or Obama is so concerned to distance himself from the decision that he's willing to let it appear Holder's alone, even though that would constitute a remarkable presidential dereliction of duty. Or both.
The good news is that, having decided on this kind of decision-making process-or having decided to say there was this kind of decision-making process-Obama and Holder have left the door open for Obama to overrule Holder, as he did a few months ago with respect to releasing the photos of alleged military-prisoner abuse.
So the conclusion I draw from the Cornyn-Holder exchange is this: Those who want to reverse this reckless and irresponsible decision need to turn to their attention both to Congress, which could act to prevent Article III court trials for some or all Guantanamo detainees, and to the president, who could reverse Holder with a stroke of a pen or a simple statement.
I imagine senators and congressmen will move ahead with legislative efforts. But they might also send a letter to the president-who hasn't yet been "directly" involved in this decision-explaining why he should step in to overrule Holder.