Politics & Policy

‘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.

#ad#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.)


In the brief — whose primary author, incidentally, was Robert Litt, at the time a prominent attorney at a major D.C. law firm and now appointed by President Obama as the intelligence community’s top lawyer — Holder and company made the argument that traditional law-enforcement tools, such as wiretaps, search warrants, Mirandized questioning, and the like, have served the nation’s security well and were sufficient to do the job. The government need not resort, they argued, to holding terrorists caught in the U.S. as enemy combatants, with no right to a criminal trial or to remain silent or to counsel during questioning, particularly if they are U.S. citizens.

#ad#The brief contains some candid admissions we haven’t heard from Holder since he took office: “It may be true that in some instances the government will not be able to obtain information from citizens who are informed of their right to counsel, or that obtaining that information may be delayed.” The authors do cite an academic study purporting to show that two-thirds of suspects provide incriminating information after being read their rights — but this suggests, of course, that one-third did not. Maybe that’s okay for criminals, but the prospect of one out of three suspected terrorists not cooperating is far from reassuring.

Whatever the numbers are, the brief leaves no doubt that Holder views the loss of intelligence information as sometimes an acceptable tradeoff because, to quote from the brief again, “as a Nation we have chosen to place some limits on Executive authority in order to protect individual authority.” Pre-Obama Holder well appreciated that under some circumstances, treating terrorists like criminal defendants may be less protective of national security than treating them like enemies of the United States. But he was willing to take the risk to reduce what he perceived as possible abuses of power by the executive branch.

The most illuminating statement on this point comes a bit later in the brief:

[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.”

The brief does not specifically quantify what level of risk the nation should be willing to accept. Perhaps it is 33 percent, reflecting the one-third of people who don’t cooperate after being Mirandized. Or maybe it’s something like the 20 percent of detainees released from Guantanamo who return to the fight, which, the president’s top counterterrorism adviser John Brennan said, “isn’t that bad” compared to the 50 percent recidivism rate of criminals.


Strangely, Holder apparently failed to disclose his involvement in this brief when he was up for confirmation early last year, even though the Senate questionnaire he was required to fill out specifically requested such information and directed him to provide to the Senate Judiciary Committee copies of any briefs filed with the Supreme Court. He disclosed three amicus briefs but made no mention of this one — or another one renewing his support for Padilla when the case returned to the Supreme Court again in late 2005. (The 2005 brief is much like the 2004 brief, except the language on acceptable risks is absent.) Had Holder disclosed these briefs to the Senate Judiciary Committee, no doubt he would have been extensively questioned about the views expressed in them. It is disappointing, and perhaps troubling, that he did not.


The briefs help to explain a great deal about Holder’s approach to KSM and Abdulmutallab, and detainee policy more broadly. The briefs provide insight into why Holder has refused to acknowledge that Abdulmutallab could have been lawfully detained as an enemy combatant. Holder has insisted for weeks that there is substantial legal doubt on this score because Abdulmutallab was caught in the U.S., not in a recognized battle zone. His position ignores the court-of-appeals ruling in the Padilla case, which held that a U.S. citizen captured on U.S. soil may be detained as an enemy combatant. That decision is still good law — but Holder appears to discount it; after all, he supported Padilla. He prefers the earlier ruling of a different court of appeals, which sided with Padilla, even though that ruling was vacated by the Supreme Court.

This may also partly explain the administration’s handling of a case that was pending before the Supreme Court when Obama took office. That case involved Ali al-Marri, a non-citizen arrested in the U.S. and held as an enemy combatant. The court of appeals found there was an insufficient factual basis to support holding al-Marri as an enemy combatant, but on the far more consequential question of whether someone captured in the U.S. could be lawfully detained as an enemy combatant at all, the court ruled in the affirmative by a 5-4 vote, again contrary to the position Holder had taken in the Padilla case.

Now that he was attorney general, Holder was well placed to reverse course. One way to do this would have been to abandon the Bush administration’s arguments and side with al-Marri. But there would have been serious obstacles to surmount, not the least of which were the objections of the many career Justice, Defense, and other officials who had supported the Bush administration’s position. Perhaps even the White House would have objected, wishing to avoid the fallout of publicly siding with al-Marri.


So the path of least resistance was to avoid the whole issue, transfer al-Marri to the criminal system, and end the appeal before the Supreme Court could weigh in. This is the course the Obama administration chose. When the Bush administration did much the same with Padilla shortly after obtaining a favorable ruling, there were protests from many quarters that the administration was gaming the system to prevent review by the Supreme Court. The press’s reaction to the Obama administration’s move was muted and, if anything, congratulatory.

(In al-Marri, the Justice Department asked the Supreme Court to vacate the court-of-appeals decision as moot, and the Court granted the request. But this did not negate the similar court-of-appeals decision in the Padilla case — which the Supreme Court had never vacated, even though the Bush administration had requested that it do so. So the president’s power to detain suspected terrorists captured in the U.S. as enemy combatants remains on the books.)

#ad#No one knows how the Supreme Court would have ruled in the al-Marri or Padilla cases. But had it upheld the court-of-appeals decisions, there would have been no way for Holder to claim any “uncertainty” about the authority to hold terrorists captured in the U.S. as enemy combatants. It’s one thing to ignore, as Holder has, a court-of-appeals decision you disagree with or ask the Supreme Court to vacate another you do not care for. It’s quite another to ignore a Supreme Court decision. Holder knows this and perhaps saw little upside to rolling the dice when he could simply declare the matter to be unsettled and go his own way.

Holder has a right to his opinion, but as the nation’s top law-enforcement officer, he does not have a right to ignore the law because of his personal views. Holder’s letters to Congress and public statements about Abdulmutallab mimic his losing briefs. They are so close in their legal arguments, examples, and points of emphasis that it would be unsurprising to learn that the briefs served as templates for the letters and statements. There is one very notable exception, however. Now that Holder is attorney general, he no longer acknowledges the risks to national security of treating terrorists as criminals. Holder could never admit that now, of course.

We also have a better understanding of why the Obama administration rushed to Mirandize Abdulmutallab after just 50 minutes of questioning, and why it so badly misread the country’s appetite for trying KSM in civilian court in New York. On the first, it is hardly surprising that no one gave serious thought to designating Abdulmutallab as an enemy combatant, since the administration’s two most senior national-security lawyers — the attorney general and the intelligence community’s top lawyer, both of whom are political appointees — had signed onto briefs as private lawyers arguing there was no such authority. No matter that they lost the argument in the federal courts.


On KSM, they saw a civilian trial as a showcase for the criminal-justice system as the best venue for trying foreign terrorists captured overseas on the battlefield. Never mind that Congress had created the military-commission system specifically to try these non-citizen suspected terrorists. Forget about the massive disruption, cost, and possible security threat to downtown Manhattan. Cast aside doubts about evidentiary issues and the pre-trial prejudice of the attorney general and the White House’s guaranteeing the conviction and execution of KSM. The KSM trial was their shot at vindicating a deeply held faith in the civilian system, while allowing the disfavored military system to wither away.


Before hysterics accuse us of “McCarthyism” for pointing out that Holder and others in the current administration filed briefs in the Padilla case, we want to make clear there is nothing wrong, in our view, with the Justice Department’s hiring lawyers who formerly represented Guantanamo detainees or now-convicted terrorists such as Padilla or al-Marri. Nor do we have an objection to those attorneys working on detainee-related issues at Justice, assuming they abide by their recusal obligations to avoid conflicts of interest. Their patriotism is also not in question.

We do find the outrage over “outing” these lawyers somewhat peculiar, however. There have been countless award ceremonies, press releases, and other highly public announcements celebrating Guantanamo lawyers by name. There is even a recently published book detailing the work of dozens of Guantanamo lawyers in the most laudatory terms.

And, in any event, in most cases, court filings are a matter of public record. This is how we learned of Holder’s involvement in the Padilla case. As far as we know, the media similarly learned the names of the lawyers from purely public sources. None of this is secret, and the suggestion the lawyers’ privacy has been invaded is ridiculous. That’s why Holder’s decision to withhold most of the names from Congress served no readily apparent purpose.

Holder’s failure to disclose to Congress his participation in the Padilla case is even more curious. Did he forget? Did he think it wasn’t important enough to mention? Was there some concern it could hurt him at confirmation? Was he worried about being associated with Padilla (who was eventually convicted of terrorism charges in civilian court)?

We do not know. But we imagine the senators on the Judiciary Committee would have preferred to have the opportunity to question Holder about the ideas he set out in his Padilla briefs before they were put into action, and just how much tolerance for risk to our national security he might have.

– Bill Burck is a former federal prosecutor and deputy counsel to Pres. George W. Bush. Dana Perino is former press secretary to President Bush.

EDITOR’S NOTE: When contacted by National Review Online regarding this story, the Department of Justice declined comment.

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