Jeff Sessions: George Bush Waited 7 Years to Set Up Military Commissions

Jeff Sessions has already seized on yesterday’s release of DOJ’s list of 390 terrorist convictions and twisted it to sustain his claim that we need to try Khalid Sheikh Mohammed in a military commission. Much of his response consists of making non-specific claims about individuals on the list in an attempt to minimize the applicability of all these convictions.

The great majority of the terrorism cases cited by the Attorney General are in no way comparable to KSM’s case. Most of the convictions in this list are for far lesser offenses, such as document fraud and immigration violations, while only a small handful concern conduct even remotely similar to a mass-casualty terrorist attack. And none are on the level of KSM, who masterminded 9/11.

Among the cases cited is that of Zaccarias Moussaoui, which was fraught with procedural problems, delays, appeals, risks to classified evidence, and even a lone holdout juror who spared the 20th hijacker the death penalty. Due to gaps in federal law, many of the problems prosecutors encountered in the Moussaoui trial will be experienced in future terrorism trials.


The figures released today also contradict the Attorney General’s claims on the Christmas Day Bomber: two of the terrorists on this list were placed in military custody precisely because the criminal justice system severely limits our ability to gather intelligence. [my emphasis]

But by far the most amusing attack on this list is Jeff Sessions’ explanation–after pointing to the procedural problems and delays in the Moussaoui trial–that most of these 390 convictions happened before military commissions were operational, which he dates to 2008.

Moreover, the overwhelming bulk of these cases are for acts committed by U.S. citizens—which KSM and the Christmas Bomber are not—and occurred before military commissions became fully operational in 2008. [my emphasis]

Someone better tell George Bush, who claims to have set up military commissions on November 13, 2001. And someone better tell Salim Hamdan, who was first charged in a military commission in 2004, and whose appeal of the terms of the military commissions lasted two years, after which there was another two year delay until his trial began.

In other words, Jeff Sessions deals with precisely the kind of delay we can expect for any future military commissions–one of the biggest reasons not to use them–by simply ignoring the delays that have already happened.

22 replies
  1. BoxTurtle says:

    Sessions ain’t talking to us, he’s talking to the GOP party base. Who have already forgot most of BushCo, remembering only the good.

    Those folks will believe whatever he tells them. And if he tells them the exact opposite tomorrow, they’ll believe that too!

    Boxturtle (If they see through it, so what? He’s still got his pro-life cred to fall back on)

    • readerOfTeaLeaves says:

      FWIW, I wouldn’t buy a car from the man.
      I don’t impute all of his misinformation to diabolical premeditated venalty; he appears to be at least a brick short of a load.

      Which clearly benefits whoever he trusts to tell him how to vote, and what to blunderbuss about.

  2. emptywheel says:

    Incidentally, this appears to be what Sessions is pointing to when he claims DOJ admitted that civilian trials have fewer controls on classified info tham military commissions.

    Classified Information Protection Act (CIPA):
    28. Under the Classified Information Protection Act (CIPA), the government may pursue an interlocutory appeal from orders “authorizing the disclosure of classified information . . . or refusing a protective order sought by the United States to prevent the disclosure of classified information.” 18 U.S.C. App. § 7(a). In United States v. Moussaoui, 333 F.3d 509 (4th Cir. 2003), the Fourth Circuit held CIPA did not authorize interlocutory appeals from orders related to the “pretrial disclosure of classified information to the defendant or his attorneys.” Id. at 514.

    a. Do you agree that under the Moussaoui decision, the government may not seek immediate review of certain decisions authorizing the pretrial disclosure of classified information? If not, please explain your answer.

    Response: In cases involving CIPA within the Fourth Circuit, under the Moussaoui decision, appellate courts lack jurisdiction under CIPA § 7 to entertain an interlocutory appeal by the United States of a district court order allowing a criminal defendant to depose a witness who may possess classified information.

    Of course, Holder wanted to try KSM in a district that is not part of the 4th, so this ruling would not affect the KSM trial.

    • BoxTurtle says:

      Yeah, but KSM’s lawyers would take that ruling with them to their circuit court when the government pulls the same kind of stunt. A ruling from another district carries weight, but I do not have any how the New York district would look upon the issue.

      They government already lost the issue once, Sessions may not want to risk a definitive ruling from the Supremes.

      Boxturtle (OT: I highly recommend trying Jones Strawberry Lime Pure Cane Sugar Soda)

  3. Jeff Kaye says:

    An interesting sidelight to the MC story comes from David Kaye in the current Foreign Policy. Kaye was an attorney-advisor at the State Department from 1995-2005. In his excellent article arguing for the formation of a Torture Commission to investigate the full panoply of how many parts of the government apparatus were involved in the torture scandal, he mentions the Nov. 13 order on the MCs that EW refers to. Emphases added.

    To all but a handful of insiders, the military commissions came as a surprise. Lawyers from the State Department, Pentagon, National Security Council, White House Counsel, and Justice Department had been discussing a variety of ways of handling suspected terrorists.

    At the working level in the State Department, we had viewed military commissions as one option among many, caveated by the fact that such commissions had not been used by the United States since the World War II era — and much had changed in the legal landscape since then. Most importantly, the United States had signed up to the Geneva Conventions of 1949 and other treaties that framed the legal requirements for the trials of combatants and civilians. Our views were incorporated into preliminary discussions, but those talks were cut short, without explanation, when the president signed his order. By that stage, there had been no sustained interagency vetting of the idea, and few had seen the text of the order itself.

    As for Sessions, he should be made to walk the streets around the Capitol with a sign on his back, “Ass for hire.”

  4. JTMinIA says:

    One comment made at that forum at NYU a few days ago sticks in my mind: there has never been a failure of CIPA. Ever. This contrasts starkly with, for example, the Office of Vice President.

  5. skdadl says:

    Could Sessions’ reference to 2008 be a bit of chutzpah — ie, both Hamdan (2006) and then Boumediene (2008) forced reorganizations of the tribunals/commissions, although those delays were direct results of questionable actions of both Bush and Congress, which is why I call this excuse chutzpah?

    Or am I giving Sessions too much credit?

  6. Petrocelli says:

    I’m leaving a bottle of Pol Roger to celebrate Mr. EW’s B’day … and a Pitcher of Chocolate Martinis, for all the Wheely, Wheely, great commenters here. *g*

  7. JohnLopresti says:

    That CIPA related excerpt seems germane. It is a theme in several Leahy written questions. One of Holder*s written replies to the interrogatories on CIPA indicates that both DoJ and the legislature are working on some minor revisions to CIPA. Both the Padilla amici brief on which Holder is signatory, and the January 19, 2010 Padilla Brief of Complainants-Appellees delve measurably into CIPA territory, as well. I suppose, when I read the Sunstein thread in a moment, there might be a CIPA filament visible as well. This is turning out to be the epoch of the binders in a library organizing the dot charts. I think some of the nuisance of the process is part of the shuffle some in congress were trying to write into their attempts to limit habeas amid the overworked wails from some on the DC bench.

    • skdadl says:

      This would suggest that the United States would not be completely opposed to including aggression as an ICC-punishable offense so long as the ICC stipulates that only the Security Council can decide if such a crime has occurred. Of course, this means that Russia, China, France, the United States and the United Kingdom will never face prosecution for aggression. But hey, that’s why it would be a “compromise.”

      I hope there are some strong spines with good brains on top of them at Kampala.

    • bobschacht says:

      Thanks for the link. I’m feeling some irony in that the article calls attention to U.S. Ambassador at Large for War Crimes Issues, Stephen Rapp (who knew?). But then when the article raises the issue of “a VERY touchy issue for the United States,” what they have in mind is not War Crimes committed by American torturers, but the use of armed force without Security Council authorization (oh, yeah, the invasion of Iraq). The U.S. is not a signatory to the ICC, but having an observer involved, especially one with a portfolio for War Crimes, provides a channel through which administration awareness of our own war crimes might be reached.

      Bob in AZ

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