Holder vs. Holder
When it comes to terrorists, the AG is at odds with himself.


Andrew C. McCarthy

Why does the Obama Justice Department seem to have trouble mounting a full-throated, compelling legal defense of Osama bin Laden’s killing? The problem for Eric Holder the attorney general could be Eric Holder the private attorney.

In 2004, Mr. Holder chose to file an amicus brief on behalf of Jose Padilla, the al-Qaeda terrorist sent to our country by bin Laden and Khalid Sheikh Mohammed to carry out a post-9/11 second wave of attacks. In the brief, Holder argued that a commander-in-chief lacks the constitutional authority to do what his boss, the current commander-in-chief, has just done: determine the parameters of the battlefield. By Holder’s lights — at least when the president is not named Obama — an al-Qaeda terrorist must be treated as a criminal defendant, not an enemy combatant, unless he is encountered on a traditional battlefield.

It would be useful if staffers at congressional oversight hearings passed around copies of Holder’s Padilla brief. It is a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief). This might explain why Holder sometimes has difficulty answering seemingly easy questions. That’s what happened this week, when the Senate Judiciary Committee quizzed the attorney general on the lawfulness of the U.S. military’s targeted killing of bin Laden.

This should be a no-brainer, unless you are a transnational progressive, such as those in the Human Rights Watch crowd, which does not concede the primacy of American law when it comes to American government action; or a pedant such as Fox’s Andrew Napolitano, who seems to think the Constitution’s words “declare war” have a talismanic quality, as if Congress were powerless to authorize warfare without uttering them.

A few days after the 9/11 atrocities, Congress — by huge bipartisan margins — enacted a sweeping authorization of the use of military force (AUMF). The AUMF, which was promptly signed by President Bush and has been reaffirmed repeatedly in congressional appropriations signed by Presidents Bush and Obama, states in pertinent part:

The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Congress could not more clearly have empowered the president to launch military operations against those responsible for the 9/11 attacks. No one was more responsible than bin Laden, who — to use the crystal clear AUMF terminology — planned and authorized the suicide-hijackings.

Not only did the AUMF put our nation on a firm war footing, Congress imposed no geographical or situational limitations on combat operations against those determined by the commander-in-chief either to have carried out 9/11 or to have harbored those terrorists. Manifestly, either Pakistan is our ally — as its government and ours both profess — in which case killing bin Laden on its soil is routine (there having been many U.S. strikes against the enemy in Pakistan), or Pakistan was harboring bin Laden in Abbottabad, in which case the AUMF expressly authorizes not only attacks against al-Qaeda operatives in Pakistan but against Pakistan itself. Q.E.D.

Except it’s not that simple for Eric Holder the attorney general, because Eric Holder the private lawyer advocated greater legal protections for terrorists. 

The attorney general told the Judiciary Committee on Wednesday that the killing of bin Laden “was justified as an act of national self-defense.” But self-defense has nothing to do with it. True, the war is a defensive war in response to an atrocious terrorist attack; that, however, does not make each individual operation by which the war is waged an exercise in self-defense. In fact, had such a suggestion been made by a Bush-administration official, Holder would likely have been outraged: In effect, the self-defense rationale would give wartime presidents exactly the “blank check” the Lawyer Left insists they do not have. No, the operation in which bin Laden was killed was offensive, and rightly so.

As Fox news elaborated, the attorney general also trotted out a second theory:

Holder said it’s lawful to “target an enemy commander in the field,” just as U.S. forces did during World War II when it [sic] shot down a plane carrying Japanese Adm. Isoroku Yamamoto. Bin Laden was “by my estimation, and the estimation of the Justice Department, a lawful military target, and the operation was conducted consistent with our law [and] with our values.” Bin Laden made no attempts to surrender and there was “no indication he wanted to do that,” Holder said.

Notice that Holder’s defense here rests on the premise that bin Laden was targeted in the field, meaning, on a battlefield. If an enemy combatant is encountered on the battlefield and he does not surrender, he may be killed or captured — it makes no difference whether he was armed, as bin Laden apparently was not.


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