Eric Holder: Moving KSM Trial to Gitmo Wrong Decision, But We’re Doing It Anyway

There was something I appreciated about the Holder press conference capitulating on trying the 9/11 defendants in civilian trials.

He didn’t try to spin it as a good idea.

Not only did he reiterate his judgment that trying KSM in a civilian trial was the right decision, he also noted that it’s not clear whether military commissions can impose the death penalty on someone who pleads guilty.

And then he ended the presser quickly, as if he had to rush upstairs to his office to vacate it so some General could move in.

That said, it’s clear that Holder lost an important battle, one he believed in. Here’s what Jane Mayer reports on the work SDNY’s prosecutors have already done on the trial.

Holder and some of the smartest prosecutors in the country had prepared what they believed was the strongest case possible against K.S.M. Lawyers involved in the effort told me they had spent years on it, and had files filled with killer evidence, just waiting for trial. Careers had been devoted to compiling an impeccable case. By using the civilian justice system, Holder had wanted to send several important messages, among them that terrorists are criminals, not some new breed of super warrior; and that the U.S. legal system is the strongest, fairest, and most credible system in the world. A guilty verdict arrived at in front of the world, in a public trial, with ordinary citizens sitting in judgment of K.S.M., would be internationally accepted as legitimate, in a way that no military tribunal ever will be. Or so the thinking went.

Of course, if Holder cared that much about these principles–and I believe he does–it would sure be nice to see him resign rather than preside over the continued decline of our commitment to the rule of law.

(Holder’s full statement–with my emphasis on select points–is below the line.)

Update: Here’s the indictment from 2009 unsealed today. It lists all the known victims of 9/11.

In November 2009, I announced that Khalid Sheikh Mohammed and four other individuals would stand trial in federal court for their roles in the terrorist attacks on our country on September 11, 2001.

As I said then, the decision between federal courts and military commissions was not an easy one to make. I began my review of this case with an open mind and with just one goal: to look at the facts, look at the law, and choose the venue where we could achieve swift and sure justice most effectively for the victims of those horrendous attacks and their family members. After consulting with prosecutors from both the Department of Justice and Department of Defense and after thoroughly studying the case, it became clear to me that the best venue for prosecution was in federal court. I stand by that decision today.

As the indictment unsealed today reveals, we were prepared to bring a powerful case against Khalid Sheikh Mohammed and his four co-conspirators – one of the most well-researched and documented cases I have ever seen in my decades of experience as a prosecutor. We had carefully evaluated the evidence and concluded that we could prove the defendants’ guilt while adhering to the bedrock traditions and values of our laws. We had consulted extensively with the intelligence community and developed detailed plans for handling classified evidence. Had this case proceeded in Manhattan or in an alternative venue in the United States, as I seriously explored in the past year, I am confident that our justice system would have performed with the same distinction that has been its hallmark for over two hundred years.

Unfortunately, since I made that decision, Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue. As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security. Decisions about who, where and how to prosecute have always been – and must remain – the responsibility of the executive branch. Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments. Yet they have taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications. We will continue to seek to repeal those restrictions.

But we must face a simple truth: those restrictions are unlikely to be repealed in the immediate future. And we simply cannot allow a trial to be delayed any longer for the victims of the 9/11 attacks or for their family members who have waited for nearly a decade for justice. I have talked to these family members on many occasions over the last two years. Like many Americans, they differ on where the 9/11 conspirators should be prosecuted, but there is one thing on which they all agree: We must bring the conspirators to justice.

So today I am referring the cases of Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al Shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions. Furthermore, I have directed prosecutors to move to dismiss the indictment that was handed down under seal in the Southern District of New York in December, 2009, and a judge has granted that motion.

Prosecutors from both the Departments of Defense and Justice have been working together since the beginning of this matter, and I have full faith and confidence in the military commission system to appropriately handle this case as it proceeds. The Department of Justice will continue to offer all the support necessary as this critically important matter moves forward. The administration worked with Congress to substantially reform military commissions in 2009, and I believe they can deliver fair trials and just verdicts. For the victims of these heinous attacks and their families, that justice is long overdue, and it must not be delayed any longer.

Since I made the decision to prosecute the alleged 9/11 conspirators, the effectiveness of our federal courts and the thousands of prosecutors, judges, law enforcement officers, and defense attorneys who work in them have been subjected to a number of unfair, and often unfounded, criticisms. Too many people – many of whom certainly know better – have expressed doubts about our time-honored and time-tested system of justice. That’s not only misguided, it’s wrong. The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system. Our national security demands that we continue to prosecute terrorists in federal court, and we will do so. Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.

Finally, I want to thank the prosecutors from the Southern District of New York and the Eastern District of Virginia who have spent countless hours working to bring this case to trial. They are some of the most dedicated and patriotic Americans I have ever encountered, and our nation is safer because of the work they do every day. They have honored their country through their efforts on this case, and I thank them for it. I am proud of each and every one of them.

Sadly, this case has been marked by needless controversy since the beginning. But despite all the argument and debate it has engendered, the prosecution of Khalid Sheikh Mohammed and his co-conspirators should never have been about settling ideological arguments or scoring political points. At the end of our indictment appear the names of 2,976 people who were killed in the attacks on that deadly September day nearly ten years ago. Innocent Americans and citizens of foreign countries alike who were murdered by ruthless terrorists intent on crippling our nation and attacking the values that we hold dear. This case has always been about delivering justice for those victims, and for their surviving loved ones. Nothing else. It is my sincere hope that, through the actions we take today, we will finally be able to deliver the justice they have so long deserved.

  1. Gitcheegumee says:

    Well, for not wanting to score political points,sure is odd it was announced the same day that the Prez announces his rerun.

    And right on the heels of Goldstone whistling a softer tune.

  2. earlofhuntingdon says:

    Going soft on applying the rule of law because a sufficient number of Congresscritters can make political hay out of it is not likely to bode well for applying the rule of law anywhere in the United States.

    Other countries are likely to see this as either a get out of the rule of law for free card, too, or as carte blanche to pursue US crimes, because the US has lost the ability to police itself.

    • Gitcheegumee says:

      Consider if this announcement had been made around the time frame of l’affaire Raymond Davis…or somewhat prior to it.

  3. sohail_67 says:


    Article part:

    In January, 2007, I was in the city of Guantanamo, Cuba with human rights activists calling for the closure of the US military prison on the fifth anniversary of the first prisoners being sent there. With us was former prisoner, Asif Iqbal, a 23-year old who told us that he had been beaten by US interrogators until he confessed to helping plan the 9/11 attacks. In reality, he was a completely innocent young man who happened to be in Afghanistan when the U.S. attack began and was swept up with hundreds of other local people. He told us how prisoners in Afghanistan and in Guantanamo confessed to anything the interrogators wanted to prevent further torture.

    I think that all those people who confessed after severe torture to having links with 9-11, its highly probable to think that they might be forced to do so.

    • lysias says:

      I happen to be reading Gustave de Beaumont’s Ireland at the moment. I think this passage about the excesses of the British authorities in suppressing the Irish rebellion of 1798 is relevant here, among other things for what it says about coerced confessions.

      Lord Charlemont declares in his Memoirs that suspected and accused persons were, without any form of trial, tortured, flogged, and half hanged, in order to extort confessions. A gentleman of eminent merit, Sir Edward Crosbie, had declared himself favourable to reform in parliament; the military judge concluded that he was a republican, and had him brought to the bar. At the trial, “Protestant loyalists, witnesses in favour of the accused, were forcibly prevented by the bayonets of the military from entering the court.” This was not all: “Catholic prisoners had been tortured by repeated floggings, to force them to give evidence against him, and were promised their lives upon no other condition that that of his condemnation.” Notwithstanding these and other violent measures, no charge was proved; of which the members of the court-martial who sentenced him to death were so sensible, that, in defiance of an act of parliament, the register of the proceedings was withheld as a secret from his wife and family. The court was irregularly constituted, and illegal, destitute of a judge advocate. The execution of the sentence was precipitate, at an unusual hour, and attended with atrocious circumstances, not warranted even by the sentence. After he was hanged, his body was abused, his head severed from it, and exposed on a spike. The president of the court was an illiterate man, unable to write the most common words of English without mis-spelling.

      Of course, it also says a lot about military drumhead tribunals.

  4. person1597 says:

    What would AC/DC do?


    All in the name of Liberty!

    Alternatively, Zwinky KSM and Judge Judy, change venues (again) to Facebook, launch hilarious microwave countermeasures and Twitter-cast the proceedings. Disqus the results!

    Meanwhile back at Libyan Rebel Headquarters

    “Our view is starting to change of the US. If we hated the Americans 100 per cent, today it is less than 50 per cent. They have started to redeem themselves for their past mistakes by helping us to preserve the blood of our children.”

    Is that not progress Pastor Jones?

  5. MadDog says:

    Call me cynical EW, but I see AG Holder’s presser as a “cake and eat it too” strategy via a big White House political thumb on the scales of Justice.

    They knew damn well that this was a kabuki surrender monkey move in bowing to the Repugs which would not go over well with legions of us, and cynically decided that shedding some crocodile tears would best suit the occasion.

    As in: “The Repugs made us a shit sandwich. We don’t like shit sandwiches, but we’ll eat it anyways.”

    • hektor6766 says:

      “The Repugs made us a shit sandwich. We don’t like shit sandwiches, but we’ll eat it anyways always.”


  6. scribe says:

    Actually, if I were Holder what I would be doing is amping up the prosecutions of Republicans. Starting with Clarence Thomas and his false statements on his disclosure forms. We need another Supreme Court appointment and his seat will do just fine.

    But I have balls and Holder, sadly, has shown he has none. So, we won’t see anything like that happen.

    • NMvoiceofreason says:

      Methinks my friend scribe is manufacturing strawmen. He knows full well there is no prosecution of any judge without impeachment, and no one in the House is going to let that indictment take place. So while the thumping of the chest makes us all feel good, I would settle for a single recusal motion when the cases on health care are heard. To show he is biased, compromised is more powerful than showing him to be guilty of something he can never be prosecuted for, much less convicted in the Senate.

      • scribe says:

        Why dontcha check your history, then ask Walter Nixon, a federal judge who was not impeached until he was already in prison serving his sentence for perjury, mainly because he was collecting his judicial pay while in prison. Then there was Thomas Porteous, who was impeached and removed last December without having had any criminal conviction against him. Then there was Alcee Hastings, who was impeached and removed for taking bribes to affect case outcomes, despite not having been convicted, and later ran for and now sits in Congress.

        Criminal charges and impeachments are two entirely different animals. Don’t confuse them.

    • liberaldem says:

      Certainly Holder is under pressure from the WH on this. This fits in with Obama’s fear of being seen as weak on terrorism. Too bad he can’t find the courage to point out that trying these people in a civilian court would be more just, and is what a country that (allegedly) believes in the rule of law would do.

    • emptywheel says:

      It’s a load of crap.

      First, a full year passed between the time KSM was indicted on 12/14/09 and when Congress did this funding move.

      Second, Congress defunded DOD actions on this front, not DOJ ones.

      • puravida says:

        Ah, the money quote:

        “Second, Congress defunded DOD actions on this front, not DOJ ones.”

        And, I suppose, Obama always has the “signing statement” option (otherwise known as the “blow me, Congress” clause).


    • JTMinIA says:

      I’m a little confused about the whole “Congress tied our hands” defense. When Congress tells the Executive that it can’t do something it wants to do, then the Executive does it anyway. Sometimes the Executive makes little noises about Constitutional authority, etc, while doing what it wants (even though Congress said No) and sometimes the Executive does it quietly, but when the Executive wants to do something, nothing stops it. This applies to just about all of the Administrations that I can remember, although I will admit that it’s been getting worse.

      So when an Executive says “I can’t do it because Congress won’t let me” I really don’t take them seriously. If the Executive really wanted to, it would.

    • scribe says:

      He’s only half right: Obama signed the bill into which Congress stuffed the limitation.

      So, he’s equally culpable.

      • Gitcheegumee says:

        I posted this on an FDL thread this a.m.:

        At what point does the line of demarcation between acquiescent accomplice and active abuser intersect?

        Your comment brought it to mind.

    • spanishinquisition says:

      He happens to be right. Even today, Holder wants to do the right thing, and so does President Obama. And yet, Gitmo is open today, and KSM will be subjected to a military commission in the near future, not because of an administration that backed down in the face of far-right whining, but because congressional Republicans orchestrated a massive, choreographed freak-out, and scared the bejesus out of congressional Democrats. Together, they limited the White House’s options to, in effect, not having any choice at all.

      No, it’s false. Obama signed that piece of legislation into law rather than veto it:

      This is like Bush I breaking his “Read My Lips, No New Taxes” and then signing legislation raising taxes…excuses don’t cut it.

  7. behindthefall says:

    Why do I get the feeling that if we didn’t have terrorists, we’d have to invent them?

  8. allan says:

    Given his corporate background, I had very low expectations for Holder when he became AG.
    He has more than exceeded them. The rule of law in this country has been permanently damaged,
    and the next Republican administration will proceed to tighten the tourniquet even further.

  9. cbl says:

    We consider this to be a step backward in our hopes that justice will be served and a confirmation of our worst fears – that the shame of Guantanamo will continue

    some 911 Families weigh in

  10. fatster says:

    O/T Another bad decision

    Supreme Court supports tax breaks that subsidize religious schools
    The court rules, 5-4, in favor of Arizona tax credits for those who give money to parochial schools and says the credits cannot be challenged as unconstitutional. Justice Elena Kagan dissents, objecting to the court’s distinction between tax breaks and tax subsidies


  11. lysias says:

    We must bring the conspirators to justice.

    Who says bringing them before a military tribunal amounts to bringing them to justice?

  12. BeachPopulist says:

    if Holder cared that much about these principles–and I believe he does–it would sure be nice to see him resign rather than preside over the continued decline of our commitment to the rule of law.


    Resign — and compromise his ability to return to lucrative private practice where he can become rich defending companies like Chiquita Brands who finance Latin American death squads?

  13. lettherebelight2011 says:

    I preface this by saying I don’t think there is an easy answer for trying foreign terrorist suspects and, on the whole, would have liked to see Khalid Sheikh Mohammed tried in federal court . . . if only as a statement to the rest of the world. However, I hear the term “rule of law” thrown around like some holy grail. For those folks, please explain to me how a military tribunal will not otherwise comport with this magical “rule of law”. For those folks, please also ask yourself if you support the ICC and how the ICC’s procedures differ from what KSM will face.

    • emptywheel says:

      I’ll come back and answer in more depth later.

      But for starters, let me just put it this way. One of the things we have hassled Hosni Mubarak for for years–one of the reasons we believed his regime did not abide by rule of law–is because he had a secondary military justice system for those seen as particular threats to his regime which often resulted in detention for years w/o charges.

      You see, when other people do this stuff, they call it an abuse of their legal system.

      • emptywheel says:

        Or to put it another way: when State judges other countries, it considers precisely this kind of dual justice system to be evidence of lax rule of law.

      • onitgoes says:

        No kidding! Thanks for that nifty little reminder. Yes, yes: do what I say, not what I do is the way we “roll” in this “democracy” – eh?

        You bring up a little-known (to most citizens AND, I daresay, to many politicians) inconvenient FACT about the Mubarak regime in Egypt. Whilst so many USA citizens were cheering on the Egyptian citizens, few of them realize how similar their own situation is here in the USA to the oppression Egyptian citizens endured under Mubarak. Sad to say, that ignorance is not bliss, it is certainly the goal of the Elites to keep our citizenry as ignorant and dumbed down and stupified as possible.

        • emptywheel says:

          It’s unfair to say we’re that similar to Egypt. Yes, we have some of hte same structural problems. Yes, corporate $$ in elections and some of the machines raise real questions about how valid those elections are.

          But still, there is a tremendous difference in degree in these issues.

          Granted, by condoning it (and using it when it was useful), we are complicit. But I think it’s unfair to say we’re as bad as the very bad stuff of Egypt.


      • lettherebelight2011 says:

        I understand and I think that goes to perception rather than the actual trial procedure. There are good arguments to make for why the tribunal system does not afford the same protections as a citizen criminal defendant in a federal court (and a separate question as to whether it should); however, if I were a defendant I would much rather be tried in a military tribunal that at the ICC.

    • bmaz says:

      Oh Hai, and welcome to Emptywheel. First off the interjection of the ICC is a complete red herring as the US is not a participatory member and, further, the 9/11 acts, irrespective of their terroristic nature, are really at root traditional crimes, amply covered by Title 18, that occurred on US soil. The interjection of the ICC into the discussion is purely diversionary and wholly spurious. Even, assuming arguendo, the ICC had some relevance, its provisons, as well as international criminal law in general, presuppose the jurisdiction where the crimes occurred will appropriately prosecute. So, this just does not fly as a germane discussion point.

      I will come back in a few minutes with some more on the underlying due process issue you raise. Suffice it to say, I believe your postulate that the military commissions constitute requisite due process to be horribly wrong.

      • lettherebelight2011 says:

        Bmaz, my question was whether the those in the progressive community support the ICC as a legitimate body to try alleged war criminals, not whether the US is a member. If this “rule of law” is a universal notion, without regard to borders, why do we accept the ICC, and indeed condemn the US for not being a member, and then turn the sword and condemn the US for not granting foreign terrorism suspects the full due process rights entitled to a citizen criminal defendant in the federal courts?

        • earlofhuntingdon says:

          Even rephrased, your contradiction makes no sense.

          The US is attempting to construct a second, subsidiary, less open “judicial” system, with its own special rules of law and procedure. It is conveniently located offshore, away from the public and even professional critical eyes, wholly bound within one of the most secure military bases in the American arsenal. Its rules and processes, as with its appeals process, are ad hoc, unproven and unnecessary.

          We already have a functioning, well-established public court system capable of handling complex trials, capable of handling difficult witnesses, classified information. Its laws and processes are public, established through centuries of precedent.

          The irony in your question is that even if the US were a signatory to the ICC, the ICC would not enter into it if the US were simply to use its established courts to try one more group of alleged major criminals.

          But by inventing an untried system, with questionable procedures and reporting rules, a questionable appeals process, with a clouded, heavily politicized history to try one special set of alleged felons, the US would be inviting ICC jurisdiction by demonstrating that it was unwilling or incapable of complying with the requirements of its own judicial system.

          • lettherebelight2011 says:

            Ah . . . the angry words of a tyrant who feels anyone who questions his/her notion of right is somehow nonsensical. Help, help, I’m being repressed. I also take that as having no clue what the military tribunal system is and just regurgitates dogma from the far left.

            • earlofhuntingdon says:

              My words are rational and informed. I can’t say the same for your self-described ignorance of the both political spectrum – if this site is far left, your 50-yard line is on the 20 – and the basic criteria for a competent legal system.

              • MadDog says:

                Supporters of Military Commissions in reality tend to base their support on their foregone conclusions they expect from Military Commissions.

                Guilty must be the verdict! No matter how arrived at, guilty must be the verdict!

                Screw the process. Screw the means. The end justifies the means.

                • bmaz says:

                  In fairness to our newfound friend, they did indicate a possible general preference for Article III courts, although for fairly mushy reasons. So, they are not the dogmatic proponent that many lost souls out there; that said, the willingness to suggest there is some type of due process equivalence with proper forums such as Article III and/or UCMJ courts martial is more than a little disturbing.

                  • MadDog says:

                    In fairness to our newfound friend then, I’ll modify my comment at # 59 above to read:

                    Many supporters of Military Commissions…

                    What bewilders me is how so many are willing to sacrifice fair process for a desired result. Do they not understand that with each diminution of a fair legal process they reduce their own protection against injustice?

                    Perhaps they think that uncorroborated hearsay will never be of concern to them. Perhaps they think that a person need not be able to confront a witness against that person. Perhaps they think a jury need not be composed of one’s peers, but instead that one composed of members of the government is just fine.

                    I don’t know where doG finds these folks, but I’d sure like to give ’em back.

                  • earlofhuntingdon says:

                    The attraction of these ad hoc tribunals set in a faraway Caribbean island seems to be their political utility. Politicians can claim what they want about them. They can simultaneously claim that they do or don’t provide a valid system of determining the facts and establishing their legal and personal consequences. They can be used by the weak to suggest that they are strong, by the strong to suggest they are just, by the predatory to display their powers of retribution and pour encourager les autres.

                    These Gitmo-based tribunals exist outside of any American electoral district. For those they will try, they are outside of normal constitutional reach. What could be done in Leopoldville could not be done in Brussels; what passed as justice for agitators in Algiers would not have passed in Paris. These tribunals can be described as being in a physical or legal Devil’s Island or as providing an oasis of “appropriate justice”.

                    That they are housed in a military limbo outside the UCMJ or any other existing credible legal system (by happy coincidence, we still refuse to acknowledge the political validity of the neighboring Castro regime), is the attraction. What they do not seem built to do is objectively develop facts or apply established rules of law to them.

                    Like our secret prisons, they are breeding grounds for hybrids that cannot ethically be created here. Like GM crops, their seeds will migrate.

                    • DWBartoo says:

                      Profoundly well spoken truth, EOH.

                      Every citizen should benefit from reading this, and every person in the legal profession should understand this, those who heed it … as well as those who do not.


                  • NMvoiceofreason says:

                    They absolutely DO NOT prefer Article III courts.

                    They could just as easily have asked EDVA or SDNY to assert forum non conveniens and move the proceedings to Gitmo. No need to give up the Article III process, or to move the immovable objects to the States.

                    Very easy to ship a judge. Robe packaged separately.

                • person1597 says:

                  Juris Mimesis in our time…

                  At first glance, [Juris]mimesis seems to be a stylizing of reality justice in which the ordinary features of our world are brought into focus by a certain exaggeration, the relationship of the imitation to the object it imitates being something like the relationship of dancing to walking. Imitation always involves selecting something from the continuum of experience, thus giving boundaries to what really has no beginning or end. [Juris]Mimêsis involves a framing of reality that announces that what is contained within the frame is not simply real. Thus the more “real” the imitation the more fraudulent it becomes.

        • bmaz says:

          I am not sure who “we” is in your comment. I personally think the ICC is an extremely flawed system and, again, it is not intended as the primary jurisdiction for cases such as these; but the rest of your questions in that regard are better asked of your government and not me. I stand by my assertion it is wholly impertinent to this discussion.

          • lettherebelight2011 says:

            That is a fair response. I’d argue that the procedures (and the results from the few military tribunal cases that have been tried) will more closely comport with your notion of due process than most think. Again, I was in support of KSM being tried in federal courts and think this is wholly a political move.

            • emptywheel says:

              So do you believe that the limit that Defense counsel cannot tell their client what the government alleges their client said in classified documents comports with the Sixth Amendment?

              This isn’t even about confronting your accuser (something the hearsay rules in Gitmo already challenge). Rather, it’s about being able to confront the evidence that you yourself have been teh source for.

            • emptywheel says:

              And note we’re not comparing this w/past MCs (though even those have been jokes–though the most ridiculous part, the secret deals that the govt has reneged on, won’t be a factor here).

              Rather, we’re comparing real trials to those conducted under the new rules recently announced.

    • patrickhenrypress says:

      I was going to respond to your trollish reply but I see you’re getting an education from others here.

      However, I did type it, half in caps. My blood pressure is returning to normal now.

      Thank you, emmtywheel.

      • lettherebelight2011 says:

        Patrickhenrypress . . . Sorry for getting your BP up, though not sure why you need to resort to naming-calling (trollish), to respond – or in your case not respond – to a post. I don’t think your namesake would approve.

    • bmaz says:

      Now, back to the real meat of your comment

      …. explain to me how a military tribunal will not otherwise comport with this magical “rule of law”.

      Well, first off, there is a real question as to the propriety of the courts for the 9/11 conspirators to start with in that it is a process that was designed ex post facto, and substantially revised long after the predicate acts, and in apparent disregard for the tenets of basing such tribunals on offenses that do not, and certainly did not at the time committed, constitute acts of war under the Law of Armed Conflict or traditionally accepted (even and especially by the US), nor lend themselves to commissions outside of the UCMJ and/or Article III courts in light of such precedent as Quirin, Eisentrager, Milligan, etc. Such a shaky foundation does not lend itself to credibility either internationally or domestically, which is something you actually stipulate to. Having done so though, you seem to ignore the stain and taint of irregular due process, created on an ad hoc basis, in dereliction of established, better well tested and respected legitimate forums.

      Moving on from there, it is hard to see how the commissions comply with any number of areas of concern that served as the basis for gutting them by the Supreme Court in Hamdan. Too many of the procedural and evidentiary rules are still created ad hoc by the executive and not set up statutorily. Further, the evidentiary and procedural rules as currently lodged for the commissions still violate the requirements for uniformity and conformity with accepted standards extant as previous found violative in Hamdan. The “fixes” did nothing of the sort, and the process still violates Hamdan.

      The “secret evidence” rules are a joke. The provisions of the recently promulgated “protective order” are craven, and violate every known standard of due process to man. The procedural and evidentiary rules shackle the defense attorney and created de jure and defacto ineffective assistance of counsel by their very nature. Attorneys are not even permitted to freaking discuss their client’s own prior statements with …. their clients. The commission rules still allow evidence obtained via torture to be utilized.

      There are simply too many things to list. To argue as you do, however, that this commission process is some kind of acceptable substitute for Article III courts or a straight UCMJ prosecution defies credibility. The commission structure is a mockery of due process.

  14. tammanytiger says:

    Once again, the administration of Mr. Constitutional Law Prof expands the national security exception to the Bill of Rights.

    History will render a harsh verdict against this White House.

  15. Jim says:

    Obama is perhaps the most disgusting human being I have ever had the displeasure to witness. It’s like a bad B movie, the guy is a con man of the highest order and surrounded himself with the same.

  16. hackworth1 says:

    Anybody that would choose to defend the murderous Chiquita United Fruit Co over its working poor (murdered victims/families/children/poisoned and/or shot), has no principles. Like Obama, and Dubya Bush (or any Bush), Holder doesn’t really give a rat’s ass about anything except money, power and his own ass.

  17. billyc says:

    It appears Holder’s announcement today is not going over very well with numerous respected rights organizations. If you have some time, emptywheel, check out the Progressive Newswire over at The Center for Constitutional Rights, Amnesty International, et al, seem to be in agreement that Holder’s decision is a political one rather than a legally correct one. I guess we only pay lip service to the rule of law concept during political campaigns rather than actually uphold it after the election.

  18. DWBartoo says:

    EW, I realize you seek the better angels in elites such as Eric Holder, and you are correct, if Holder really “believed” or “cared about” … certain legal principles, then he would resign, as a protest and, as well, to distance himself from the abrogation of those principles … instead Holder blames Congress, a Congress which does not object when the Executive takes the nation to war without asking the consent of that Congress … an essentially toothless Congress which has “pushed” this administration into doing … precisely what this administration wants to do, time and again.

    Utterly pathetic and cowardly, the signature of this administration, writ large.

    Eric Holder, like Barack Obama, is merely concerned with the expediencies of hoisting his own dear sweet self into the legacy class, beyond care, beyond conscience, and, most very definitely, beyond personal consequence …

    One wonders how many in the legal profession will accord The Attorrney General the “deference” of simply looking the other way, despite the implications which attend Holder’s “decision” … especially “looking forward”?


  19. john in sacramento says:

    Obviously, Holder isn’t a student of history, considering that today’s the day MLK was murdered

    From his last sermon, Remaining Awake Through a Great Revolution


    One day a newsman came to me and said, “Dr. King, don’t you think you’re going to have to stop, now, opposing the war and move more in line with the administration’s policy? As I understand it, it has hurt the budget of your organization, and people who once respected you have lost respect for you. Don’t you feel that you’ve really got to change your position?” I looked at him and I had to say, “Sir, I’m sorry you don’t know me. I’m not a consensus leader. I do not determine what is right and wrong by looking at the budget of the Southern Christian Leadership Conference. I’ve not taken a sort of Gallup Poll of the majority opinion.” Ultimately a genuine leader is not a searcher for consensus, but a molder of consensus.

    On some positions, cowardice asks the question, is it expedient? And then expedience comes along and asks the question, is it politic? Vanity asks the question, is it popular? Conscience asks the question, is it right?

    There comes a time when one must take the position that is neither safe nor politic nor popular, but he must do it because conscience tells him it is right. I believe today that there is a need for all people of goodwill to come with a massive act of conscience and say in the words of the old Negro spiritual, “We ain’t goin’ study war no more.” This is the challenge facing modern man.


    • earlofhuntingdon says:

      Might as well ask Papillon why he kept trying to escape; better yet, Jean Valjean.

  20. bluewombat says:

    Of course, if Holder cared that much about these principles–and I believe he does–it would sure be nice to see him resign rather than preside over the continued decline of our commitment to the rule of law

    Oh look, Mama! Look at those pigs flying!

  21. earlofhuntingdon says:

    I hadn’t read Jeff Kaye’s piece when I wrote my comment @66. He delves into the same idea at greater depth.

    • bmaz says:

      There is an awful lot in there that is very good and spot on; however, I disagree with this:

      The aim behind all this is political: to mobilize the U.S. population for imperialist war adventures abroad, and political repression and economic austerity at home.

      I do think that is a result and/or side attraction, but not the overarching reason for choosing Gitmo commissions over Article III trials.

      • earlofhuntingdon says:

        As PJEvans implies, the political necessity for convictions of defendants in selected high-profile terrorism cases seems to be one of the few things that virtually everyone inside the Beltway agrees is a must have. No politician or his party wants to be responsible for letting a “worst of the worst” go free, or be responsible for what they or those inspired by their treatment might orchestrate afterwards.

        What is a White House to do if it loses in court? It doesn’t matter whether it didn’t prep its witnesses, they contradicted themselves or weren’t credible; if it couldn’t get critical evidence admitted; because the law simply doesn’t fit its interpretation of it; or even because of jury nullification.

        It can’t try him again for the same crimes. It has to let the prisoner go free. It has more options in a military commission, with rules that are explicitly stacked in the government’s favor. If all else fails, at Gitmo, it would be easier for the government to fall back on its indefinite detention program.

        • PJEvans says:

          I made a comment something like that at the LA Times, when they reported on this.

          I am so Not Happy with this administration.

        • bmaz says:

          There may be some of that, but remember there was more than sufficient evidence to convict KSM that is not tainted in the least; there was no chance of not convicting him. Heck there is a fair chance the 9/11 defendants (probably at KSMs lead) would have pled guilty. All these things I think have been meticulously gameplanned out for years; I have an inkling the attorneys had a whole range of evidence that ranged from perfectly clean to severely tainted and were prepared to convict even if the more tainted evidence were precluded. In that regard, at least by my guess, the ability convict and demand to use compromised evidence were not really determinative in the decision. It was all purely and cravenly political cold calculation.

          • emptywheel says:

            FWIW, my best guess is the indictment relies on a lot of SIGINT, papers, other witnesses. It appears they DO include evidence from KSM’s interrogations, though it also appears that evidence may have first come in February 2004. And there’s stuff–like KSM’s attempted trip to the US–that either came from his testimony even later than the 9/11 Report, or from really good searches on visa apps (though I doubt they could hhave gotten the latter w/o his testimony).

            My impression is they don’t rely on Ramzi bin al-Shibh’s interrogations at all, cause there’s a lot of interesting stuff in the 9/11 report that isn’t in the indictment. But as I pointed out in that thread, al-Shibh’s lawyers are challenging his competence to stand trial, so it’d be very easy to argue that anything al-Shibh gave was torture induced.

            KSM, they apparently believe, remained sane in spite of the 183 waterboardings.

          • earlofhuntingdon says:

            I was describing a political calculation, one that dismissed the fates of these and dozens of other men without a thought. The legal system is built on providing justice for the guilty, because as citizens who have transgressed social boundaries, they still deserve it, and because the system sometimes gets it wrong.

            What you describe is colder, crueler and cruder political calculation. It has nothing whatever to do with the law or appropriate outcomes for convicted criminals. It has everything to do with aggrandizing the power of a small clique and insulating it from criticism. There’s nothing about that that deserves social acceptance or a second chance at elected office.

      • Jeff Kaye says:

        There are different kinds of causation, as I am sure you are aware. While my claim about the ultimate aim may not be the efficient cause behind the decisions re commissions, it does remain the telos (or teleological or final cause), and not a result or side effect of same. It flows, in other words, from the needs of an imperialist state prosecuting a series of wars and occupations.

        The seed does not know the adult plant is its aim, but it is progressing or grows in that direction never the less.

        Holder may not know he’s helping bury the form of 18th-19th century democracy bestowed from the early days of the Republic, tempered as it was by a genocidal war against aboriginals and the need to preserve a dual free-labor/slave system. This is all “aimed” at introducing a dual system aimed at preserving a declining state in its expansionist-imperialist stage, beseiged from without by competitors and upstarts, and with little at home to brace it but fear. The military commissions of today are the harbingers of the terrorist or “national security” courts domestically tomorrow. Didn’t Neal Katyal join up with Jack Goldsmith on this?

        It is the latter to which I allude in my article when I say “Proposals for “terrorist courts” continue to be seriously considered, while the public uproar over the use of torture on prisoners has died down ever since Barack Obama told his Democratic Party followers not to “look back,” and made clear that accountability for war crimes would not happen on his watch.”

        • NMvoiceofreason says:

          There is another way to look at this move. The Holder DOJ may be aware that the clock is running out on the use of torture derived evidence (about all they have against KSM) and Super Secret Top Secret Gamma Guppy Extra Secret Noforn Noporn evidence.

          I think you are right about Katyal and Goldsmith. Happen to be reading Goldsmith’s “The Terror Presidency” tonight.

          Brave and important… a book that anyone concerned about civil liberties in the war on terror must read. – Neal Katyal

          Frankly, Goldsmith and Katyal wouldn’t know a civil liberty from a question on a bar exam.

  22. PJEvans says:

    I suspect part of the reason for this is that it’s the only way the government can guarantee convictions – a real court with an honest judge might decide to throw the case out, just because of the torture issue.

  23. dustbunny44 says:

    Late last year President O came up with wins in several areas of legislation and it seemed like he had deals done on the side with Republicans.

    Odd things like giving in to this KSM trial when he could have bulled through it make me wonder if this was something he traded for votes to be named later (though he already knows what they are).