Touting what they call Eric Holder’s “reasonable decision” to transfer Khalid Sheikh Mohammed and four other 9/11 plotters to Manhattan for a civilian trial, my friends Jim Comey and Jack Goldsmith put themselves in a quandary. When their Washington Post op-ed makes a reasonable point, it presents their own reasoning, not Attorney General Holder’s. On the other hand, when they address the rationale Holder actually offered for his decision, even they have to admit that a core part of the attorney general’s argument is bogus. Comey and Goldsmith are very able lawyers, and Lord knows that is what Mr. Holder needs here, but Holder’s decision — in reality, President Obama’s decision — is unreasonable, and these former top Justice Department officials are unpersuasive in contending otherwise.
Comey and Goldsmith make their strongest point when discussing the spotty performance of the military-commission system. As they recount, “The only person who had a full commission trial, Osama bin Laden’s driver [Salim Hamdan], received five additional months in prison, resulting in a sentence that was shorter than he probably would have received from a federal judge.” I’ve complained about that trial, too. The problem with citing it as proof of Holder’s reasonableness is that the argument represents Comey and Goldsmith’s thinking, not Holder’s. According to the attorney general, the commission system is superb: That is why the administration has consigned the bombers of the U.S.S. Cole to a military trial.
Comey and Goldsmith nonetheless offer a surprisingly skewed account of the commissions. They assert that “the record of the military commission system that was established in November 2001” is “three convictions in eight years.” That’s wrong. “The military commission system that was established in November 2001” was authorized by a presidential directive, and it went out of business three years ago: In 2006, it was invalidated, on very dubious grounds, by the Supreme Court’s Hamdan decision. It was then replaced by a new, congressionally authorized commission system.
Thus, Comey and Goldsmith exaggerate the “great uncertainty” surrounding the commissions’ legal validity — uncertainty they attribute to unspecified “changes in constitutional, international and military laws since [commissions] were last used, during World War II.” Maybe that was true of the original commissions ordered by President Bush, but there is no uncertainty about the commission system installed by the 2006 Military Commissions Act (MCA). Indeed, Congress enacted the MCA at the behest of the Supreme Court. When detainees’ volunteer lawyers later argued that the MCA-based commissions were invalid, that claim was rejected by the lower federal courts. That is why Salim Hamdan’s trial went forward in 2008, as did the trials of others, until the Obama administration suspended the commissions in January.
Nothing is certain in litigation, but it is likely that the Supreme Court will ultimately find that the congressionally authorized commissions are legally sound. Comey and Goldsmith rightly suggest that it may take a long time for a final conclusion to be reached, but so what? Interminable delay and uncertainty are staples of the civilian justice system, too. For example, the appeal in the embassy-bombings case was decided just this year — eight years after the trial and eleven years after the bombings. Just last week, the Second Circuit finally directed the Blind Sheikh’s attorney, Lynne Stewart, to report to jail, seven years after she was arrested on a terrorism charge, four years after she was convicted, and three years after she was sentenced to prison. And, because the appellate court’s decision requires that she be re-sentenced, additional years of litigation are now guaranteed.
Yes, the military system performed very poorly in one commission trial — that of Hamdan. But the next commission trial proceeded in an orderly and expeditious fashion, and combatant Ali Hamza al Bahlul was appropriately sentenced to life imprisonment. The problem with Hamdan’s trial did not indicate a structural defect in the commission system, but rather the shoddy performance of the trial participants. Recognizing how important, after so much anticipation, the first commission trial would seem, I conceded at the time that Hamdan’s case made the commission system much harder to defend. I doubt, however, that the civilian system would fare very well on a “one strike and you’re out” standard, either.
THE CIVILIAN RECORD
It is true, as Comey and Goldsmith contend, that the civilian system has taken more cases across the finish line than the military system. It’s also true that there hasn’t been an organized al-Qaeda bar attacking the civilian system’s very existence for eight years. In any event, the civilian system’s record hardly recommends it as an error-free rocket docket. To cite just a few examples:
Lynne Stewart: The reason for the do-over in Stewart’s sentencing described above was the appalling 28-month term imposed by a federal judge in the same courthouse where Holder proposes to hold KSM’s trial. Based on federal sentencing guidelines, the U.S. attorney’s office thought the sentence should be more like 28 years than 28 months.
Mamdouh Salim: In 2000, while ostensibly preparing to be tried for bombing the U.S. embassies in Kenya and Tanzania, Mamdouh Mahmud Salim tried to break out of federal prison in New York. The Egyptian planned to exploit his U.S. constitutional right to meet with his U.S. taxpayer-funded counsel to abduct those lawyers and use them as hostages. The plot was thwarted, but not before Salim stabbed two prison guards, maiming Officer Louis Pepe by jabbing a shiv through his eye and into his brain. He later pleaded guilty to the attempted murder of Pepe. At sentencing, however, another federal judge in Manhattan declined to apply the terrorism enhancement that would have resulted in a sentence of life imprisonment. She somehow found that the attempted murder was not related to terrorism despite overwhelming evidence that Salim, a founding member of al-Qaeda, had conspired with his fellow al-Qaeda prisoners to enable all of them to escape. This specious ruling was reversed by the Second Circuit last year, but Salim still has not been re-sentenced — seven years after pleading guilty. Moreover, though it’s been eleven years since Salim’s transfer to the United States, he has never faced trial for the embassy bombings, the reason he was brought here in the first place.
Embassy bombings: Speaking of which, one reason it took so long for the appeal to be decided was the hash the presiding judge made of the confession evidence. He originally suppressed the confession of the Nairobi bomber because the defendant — a Saudi then detained in Kenya — had not been given Miranda warnings. The ruling, which would have resulted in an acquittal had it stood, was absurd: The FBI had tried in good faith to adapt Miranda to the circumstances, but the judge said that wasn’t good enough — unreasonably demanding that the Justice Department impose American standards on foreign countries. The judge later reversed himself, albeit not very cogently, and, earlier this year, the Second Circuit rejected his presumptuous theory. In the trial, the jury declined to impose the death penalty for the massacre of more than 200 people, just as the civilian jury in the Moussaoui case later declined to impose it for the massacre of nearly 3,000 people.
Khaled al Mutairi: A federal judge in Washington recently reversed the Defense Department’s finding that detainee Khaled al-Mutairi is an enemy combatant. This mind-boggling decision followed the government’s presentation of evidence that: a foreign intelligence service had identified Mutairi as an al-Qaeda “hardcore extremist”; he’d traveled to Afghanistan right after 9/11 using a known al-Qaeda smuggling route; he’d contributed money to an al-Qaeda front designated as a terrorist entity under U.S. law; he’d fled toward Tora Bora after the U.S. invasion using the same route as al-Qaeda and Taliban fighters; his name had been found in an al-Qaeda safe house on a roster of “captured Mujahideen”; and his passport had been seized from an al-Qaeda safe-deposit box (which is consistent with the terror network’s practice of having its operatives turn in their passports).
Khobar Towers and the Cole Bombing: Though Holder’s tenure as a Clinton administration deputy attorney general coincided with the investigation of the 1996 Khobar Towers bombing (19 members of the U.S. Air Force killed) and the bombing of the U.S.S. Cole (17 members of the U.S. Navy killed), no indictments were filed in those cases until years later — and those were filed by the Bush Justice Department, after the 9/11 attacks. No defendant has ever been extradited to face trial on those indictments, and the Obama administration has opted to consign the Cole bombers to a military commission.
PADILLA, REID, AND MOUSSAOUI
As this instructive but hardly complete history suggests, Comey and Goldsmith are at their least persuasive in evaluating the civilian system’s performance. They strangely point to José Padilla’s case as an exemplar of the civilian system’s capacity to put away terrorists. But under civilian-court restrictions, the government was unable to prove the conduct that had caused it to detain Padilla for several years as an enemy combatant. He was convicted of a much less serious terrorism offense, unrelated to his plot with KSM to carry out a wave of post-9/11 bombings in U.S. cities.
Similarly, Comey and Goldsmith’s invocations of “shoe bomber” Richard Reid and the super security of the supermax prison in Colorado where he is an inmate do not help the attorney general much. A few months ago, while proclaiming the civilian system’s capacity to detain terrorists securely (and leaving out any mention of Salim), Holder assured Americans that the law allows him to impose “Special Administrative Measures” (SAMs) to restrict the ability of imprisoned terrorists to conspire and to communicate with the outside world. The attorney general did not mention, however, that his department was at that moment abandoning the SAMs in Reid’s case. The DOJ capitulated to the alien terrorist’s protest that the SAMs somehow violated his U.S. constitutional rights — specifically, his claimed First Amendment right to communal prayer with the other jihadists held in the Colorado supermax.
Even more problematic is Comey and Goldsmith’s account of the Moussaoui case and what they conclude it says about how “federal prosecutors and judges have gained extensive experience protecting intelligence sources and methods, limiting a defendant’s ability to raise irrelevant issues and tightly controlling the courtroom.”
Comey and Goldsmith recall that Moussaoui requested “access to terrorists held at ‘black’ sites,” and they euphemistically observe that this issue “had to be litigated.” In fact, the trial judge dismissed the death-penalty notice, effectively taking capital punishment off the table, and barred the government from presenting 9/11 evidence on grounds that the Justice Department refused to grant Moussaoui access to terrorist detainees and to some of the top-secret intelligence they provided. To be sure, a divided Fourth Circuit panel reinstated the option of seeking the death penalty when the government appealed. But the panel was highly sympathetic to the trial judge’s concerns, concurred that the judge was empowered to grant Moussaoui access to the witnesses, agreed that the government had denied Moussaoui the right to present his defense, and promised it would carefully examine the Justice Department’s additional disclosures to ensure that they were sufficient to give Moussaoui a fair trial. The dissenting judge even agreed with the trial court that the death penalty should be scrapped. It was anything but certain how this dispute would play out at trial, but Moussaoui surprised everyone by pleading guilty, so we never found out.
Thus, though Comey and Goldsmith refer to the Moussaoui “trial,” the Moussaoui case did not feature a real trial in which guilt has to be determined under burdensome rules of procedure and evidence. It was only a sentencing hearing. Sentencing is more complex in capital cases than in other cases — beginning with the fact that it is a jury proceeding — but it is still very different from a trial. In a sentencing hearing, the rules of procedure are less exacting, and hearsay information is routinely presented. While we have no idea how an actual trial would have gone, Moussaoui’s legal advisers wanted him to continue pressing for the intelligence and the government remained extremely reluctant to accede to those demands — so it is possible, if not probable, that the courts would have demanded that the government either disclose more classified information or face dismissal of major parts of its case.
HOLDER’S REASONING ‘DOES NOT HOLD UP’
On the matter of classified information, the Comey-Goldsmith argument goes off the rails. They write, “It is difficult to imagine a military commission of rudimentary fairness that would not allow a defendant [like Moussaoui] a similar right [to the one he would have in the civilian system] to represent himself and speak out in court.”
I respectfully disagree. In the civilian system, Supreme Court precedent holds that a defendant’s right to conduct his own defense is absolute. In the military system, where enemy aliens do not have the full panoply of constitutional rights, a defendant who wants his defense to have the benefit of classified discovery material must accept a military lawyer with a security clearance. We don’t have to give him direct access to national-defense information. This is not a violation of “rudimentary fairness.” It is the drawing of a commonsense line between an accused war criminal’s right to due process and the American people’s right to self-defense: The defendant still gets a fair trial, but, as courts are wont to observe, a fair trial is not necessarily a perfect trial. This is one of those many compromises that reduce fairness — but do not eviscerate it — for the higher public good of national security.
Comey and Goldsmith seem to recognize as much elsewhere in their essay. Not only do they concede that the commissions impose “restrictions on the [defendant’s] ability to examine classified evidence,” they also speculate that Holder probably shunted the Cole bombers off to a military-commission trial because the government’s case is weaker. That is, they presume the Cole prosecution can properly benefit from advantages it gets under commission rules. Yes, the Cole defendants will be deprived of rights they would get in civilian court, but Comey and Goldsmith do not claim this means that their commission trial will lack rudimentary fairness.
In deducing that the comparative weakness of the Cole case is the real explanation for Holder’s decision to consign it to the military system, Comey and Goldsmith are forced to concede that the attorney general’s stated reason for this decision — that the Cole was a military target outside the U.S. — “does not hold up.” Obviously, they’re right about that. The 9/11 attackers hit the Pentagon as well as civilian targets. And it’s irrelevant that the Cole was “outside the U.S.” The Cole bombing did not prompt a military war against al-Qaeda. It eventually resulted in a civilian indictment that is still pending. The Pentagon is the ultimate military target, and the attack against it spurred both the war we are now fighting and the implementation of military commissions to try jihadist war criminals. Yet, Holder has decided to give KSM & Co. the protections of a civilian trial rather than the rigors of a military hearing. Given that humanitarian law has for decades strived to civilize warfare by protecting civilians, it is perverse to swaddle mass murderers in full Bill of Rights protections while those who strike military assets get second-tier due process. But the point here is that Comey and Goldsmith are purporting to defend “Holder’s reasonable decision.” How reasonable can Holder’s decision be if his defenders must substitute their own suppositions for his, which, as they admit, cannot withstand scrutiny
Holder’s untenable distinction between the Cole jihadists and the 9/11 jihadists exposes him to what Comey and Goldsmith concede are “charges of opportunistic forum shopping.” They’re being kind. This is not just a charge; Holder is engaged in opportunistic forum shopping — Comey and Goldsmith’s own theory for why the Cole case is going to the military system attests to that. Even worse is the fact that under the MCA, the American people’s representatives sensibly prescribed military-justice processes for combatant detainees and war criminals, but now, thanks to Holder, all terrorists consigned to that system will be able to claim that giving them less due-process protection than that given to the barbaric KSM violates the bedrock American principle of equal protection under the law. Rather than concede how problematic this is, Comey and Goldsmith counter that the Bush administration did the same thing, as if that made it all right. They also resort to a familiar defense for decisions that lack principled consistency: Holder, they write, is being “pragmatic.”
But he is not. Moussaoui was the poster child for military commissions, yet the Bush Justice Department indicted him in the civilian system. That wasn’t pragmatic — it was a mistake — and many critics, including Bush supporters, said so at the time. Absent Moussaoui’s guilty plea, the government could well have lost the case or, to save it, could have been compelled to disclose and compromise important intelligence. That the civilian prosecution resulted in a conviction (but not the death penalty) means that we dodged a bullet, not that we created a model.
What Holder has done is in fact the antithesis of pragmatism. He has taken a military-commission case — one in which five terrorists had announced their desire to plead guilty and proceed to sentencing — and, after ten months of delay, moved it to the civilian system, where we are likely to see a trial under rules that will make the prosecution’s task more difficult. In a case that might be over by now had it been kept in the commission system, our worst enemies will get a couple of years to plow through the government’s intelligence files and put American counterterrorism policies on trial. There will be sworn testimony about the development and implementation of those policies. Left-wing lawyers, who are already urging European courts to bring war-crimes indictments against U.S. intelligence officers and Bush-administration officials, will enjoy a windfall. National-security agents, who must make difficult decisions as our country is under siege, will be further mired in the ethos of timidity that Goldsmith warned about in his excellent book, The Terror Presidency.
Plus, there is the larger context to consider: Holder has packed the Justice Department with lawyers who spent the last eight years representing America’s enemies. By so doing, the attorney general has demonstrated a stunning insensitivity to conflicts of interest, a subject on which the Justice Department traditionally hews to a high standard — namely, the requirement that its lawyers avoid not just real conflicts of interest but the mere “appearance of impropriety.” Wittingly or not, the precedent Holder has created in rewarding KSM with civilian-trial rights redounds to the benefit of all lesser terrorist detainees, including those still represented by Holder’s former firm. They now have an argument that proceedings against them in the military system prescribed by Congress are unfair and capricious.
Comey and Goldsmith write about Holder’s “reasonable decision.” During his Senate testimony last week, the attorney general was asked whether a captured alien enemy combatant had ever been brought into the United States during wartime for a civilian trial at which he was vested with all the rights of the Americans he had sworn to kill. Holder was stumped. How could a lawyer, let alone the attorney general, make a “reasonable” decision without familiarizing himself with the precedent (or, in this instance, the lack of precedent) supporting his judgment? Similarly, Holder was unable to answer the simple question of whether, under DOJ’s new protocols, a captured Osama bin Laden would have to be given Miranda warnings and access to counsel. These are elementary considerations. Under the circumstances, it is fair to suspect that Holder’s decision is more reflective of a pro-detainee bias in the current Justice Department than of the objective, thoroughgoing analytic practices that traditionally are the Department’s hallmark.
Many things can be said about Eric Holder’s decision to transfer the 9/11 terrorists to civilian court. That it is reasonable is not one of them.