‘Acceptable’ Risk
Holder's undisclosed Padilla connection.


Attorney General Eric Holder and others in the Obama administration have advocated trying Khalid Sheik Muhammed, and acquiring intelligence from Christmas Day bomber Umar Farouk Abdulmutallab, in the criminal-justice system. The protections afforded individuals in the criminal-justice system generally exceed those afforded in the military system, so one might think terrorists would be put at an advantage if they are treated as criminals rather than enemy combatants. But we must reject, the president has told us, “the false choice between our security and our ideals.”

It is not unreasonable to expect that a person who is told he has a right to remain silent might exercise that right. Nor is it far-fetched that requiring the unanimous agreement of twelve jurors, as opposed to the vote of two-thirds of the members of a military commission, is more likely to result in an acquittal. But, we are reassured by Holder, there’s little cause for concern, because criminals usually talk when offered leniency and “failure is not an option” with KSM’s trial — an unusual vow for an attorney general to make about a criminal trial that will be decided by an impartial judge and jury.

The message is simple and absolute: Giving more constitutional rights to suspected terrorists will not impede our efforts to protect national security.

But the attorney general had a different view not so long ago when he was a lawyer in private practice. Back then he understood that Mirandizing terrorists, to choose one example, is not without risk to our national security. In 2004, he joined former attorney general Janet Reno and two other Clinton-era Justice Department and CIA attorneys on an amicus brief (a brief by interested third parties offering views on the legal questions in a case) to the Supreme Court supporting Jose Padilla, the U.S. citizen suspected of working with KSM and others in an al-Qaeda plot to explode a dirty bomb in a U.S. city. The brief can be found here.

The key issue before the Supreme Court was this: Does the president have the authority to hold a U.S. citizen who was captured on U.S. soil as an enemy combatant, without criminal charges? The Bush administration said yes. Padilla, supported by Holder and other interested third parties, said no.

(In another case, the Supreme Court decided that a U.S. citizen captured on the battlefield in Afghanistan could be held as an enemy combatant, but in Padilla, the Court ultimately declined to provide an answer regarding suspected terrorists captured in the U.S. Instead, for other reasons it overturned the lower court, which had ruled in Padilla’s favor, and sent the case to a different court to take a fresh look at the legal issues. Padilla eventually lost that case on appeal.)



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