Eric Holder is chief among the many Obama Justice Department lawyers who, during the Bush years, donated their services as private attorneys for the benefit of al-Qaeda terrorists. His motive was to frustrate efforts to treat our wartime enemies as just that: wartime enemies. He preferred the failed law-enforcement model that regards our enemies as garden-variety criminals — the counterterrorism approach he had overseen as deputy attorney general while America was serially attacked during the Clinton years.
Nothing has changed. As the Obama administration’s attorney general, Holder is still gratuitously taking positions that help the likes of 9/11 mastermind Khalid Sheikh Mohammed. Witness his baffling suggestion this weekend that it would be better to try KSM and five other 9/11 plotters in civilian court because of the purported legal uncertainty about whether guilty pleas are permissible in military death-penalty cases.
To be clear, I am not contending that the attorney general approves of terrorists or that his purpose is to help them. I am saying that Holder is in the thrall of an ideology, the inevitable effect of which is to aid our enemies. This progressive ideology, shared by many legal elites, holds that the use of military legal processes during military conflicts — processes to which the United States has resorted throughout our history — is somehow a greater danger to us than international terrorism itself.
The attorney general would doubtless like to see al-Qaeda chieftains convicted and executed, but only if it is done on his own terms. That means using civilian courts, regardless of whether this rewards the terrorists who have committed the worst atrocities with valuable due-process advantages; betrays the underlying imperative of international humanitarian law to protect civilians from being targeted for attacks; and makes it more difficult to convict and execute war criminals.
The attorney general’s latest claims are grossly misleading. First, he asserts that guilty pleas are permitted in civilian capital cases — as if to imply that only in military courts must we have burdensome trials in which juries must approve the death penalty. Try telling that one to the Moussaoui jury.
At his civilian trial in Virginia, Zacharias Moussaoui did plead guilty to participation in the 9/11 plot. But that plea did not end the case. Under federal law, capital cases are bifurcated: Even if a defendant admits guilt, the issue of punishment must still be tried to the jury. Holder conveniently elides mention not only of this fact but of the history of capital punishment in civilian international-terrorism cases. In the 16 years since the federal death penalty was restored in 1994 — 16 years throughout which the United States has been ravaged by jihadist terror — the Justice Department has approved capital charges for exactly three defendants: Moussaoui and two of the 1998 U.S. embassy bombers. In each case, civilian juries rejected the death penalty. If Holder is saying there’s a better chance these savages will be executed if they are tried in the civilian system (and that is precisely what he’s implying), there is nothing to support that claim.
Second, the claim Holder floats that guilty pleas may not be permissible in capital military-commission cases is meritless. Holder did not explain his theory, but we can speculate that he is referring to a suggestion spun last year in a New York Times report. The paper intimated that federal law might be ambiguous on whether guilty pleas were allowed. Positing that “military law” is the “model for the military commission rules,” the Times report pointed out that, in courts martial for members of our armed forces, guilty pleas are prohibited in capital cases. Prosecutors must prove guilt even if a soldier wants to plead guilty. The Times, which is resolutely anti–death penalty, added that this was to “ensure fairness.”
Nice try. Military commissions are not courts martial, even though it has been a project of the Left — when it is not trying to endow our terrorist enemies with all the rights of American civilians — to vest them with the same legal protections our law gives to American soldiers. Commissions, moreover, do not take place pursuant to the “model” of military law, the Uniform Code of Military Justice (UCMJ). Instead, they are governed by a special statute, the Military Commissions Act (MCA).
Unlike the UCMJ, the MCA provides no bar to guilty pleas in capital cases. To the contrary, MCA Section 949i(b) states that when an accused pleads guilty to “any charge or specification” (capital charges are not mentioned, much less exempted), a finding of guilt “may be entered immediately without a full vote” of the commission. At that point, the commission moves on to consider sentencing. A different MCA provision, Section 949m, directs that commission members must be unanimous in imposing death.
So where are Holder and the Times getting the idea that guilty pleas are not permitted? They are obviously relying on a portion of Section 949m that says an accused may not be sentenced to death unless he is “convicted of the [capital] offense by the concurrence of all the [commission] members[.]” But that provision is plainly talking about what happens when an accused pleads not guilty, necessitating a trial. It is not silently undertaking to supersede the aforementioned Sec. 949i(b), which separately governs guilty pleas.
As the attorney general knows, this is the way civilian rules are construed, too. That is, there are separate provisions governing trials and guilty pleas: The fact that federal criminal procedure Rule 31 says jury verdicts must always be unanimous does not mean jury determinations of guilt are always required. Instead, a different provision, Rule 11, outlines the procedures to be followed when a defendant decides to plead guilty.
It is an elementary canon of construction that, where possible, congressional statutes should be read in harmony, not as if they were at war with one another. Reading the provisions that way, one easily sees that in capital military-commission cases, just as in civilian death-penalty cases, Congress intended to bifurcate determinations of guilt and sentencing. If the accused insists on a trial, then he may not be executed unless the commission (or jury) is unanimous: first, on the question of guilt, and, second, on the question of death. If, by contrast, the accused wishes to plead guilty, he may do so, but that resolves only the issue of guilt; there must still be a sentencing phase at which the commission (or jury), after hearing evidence and argument, may impose death only if its verdict is unanimous.
Furthermore, Holder is now the attorney general. He is no longer at liberty to freelance for terrorists — his client is the United States, which is at war with terrorists pursuant to a congressional authorization approved with overwhelming bipartisan support. His client is not the foreign terrorists: KSM already has plenty of lawyers. Holder’s client is the American public (i.e., the people KSM wants to kill). Thus, while Holder may not like military commissions, he is obliged to make them work, just as any attorney general who disagrees, as a private citizen, with the policy behind a given law is duty-bound to resist undermining that law in his official capacity.
There is clearly a way to interpret the MCA to permit guilty pleas in capital cases. I’d argue that it happens to be the superior interpretation and that it is the one urged by military prosecutors. Holder’s job in running the Justice Department is not to undermine the defensible legal arguments of the Defense Department. He is supposed to make the case that is in the best interest of the public — and how could it not be in the public interest to allow the worst terrorists to plead guilty?
In addition, even if Holder were genuinely convinced that the MCA, as currently written, is too vague to permit capital defendants to plead guilty, his duty would be to work for a clarification of the law to permit guilty pleas. The Obama administration, which dominates this overwhelmingly Democratic Congress, could get such a clarification enacted tomorrow if it were really thought necessary. Sure, it would require only a one-sentence law rather than a 2,000-page monstrosity of a bill, but I’ll bet Democrats still remember how to write one of those.
When critics contended that Americans had a right to know whether lawyers who chose to donate their services to al-Qaeda were now in charge of counterterrorism policy, Holder wailed that the patriotism of Justice Department lawyers was being attacked. The legal profession’s heroic self-image notwithstanding, there is nothing patriotic about volunteering to represent terrorists; that something is legal doesn’t make doing it patriotic. But the patriotism strawman is neither here nor there. The point has always been a commonsense one: When you do something you don’t have to do — as Holder did as a private lawyer in 2004, filing an amicus brief on behalf of al-Qaeda terrorist Jose Padilla — that is a free choice. We are entitled to weigh what that choice tells us about where you’re coming from.
In taking up Padilla’s cause, Holder was not acting out of obligation. He was acting out of passion, out of ideology. More forthright then than he is now, Holder conceded that using the civilian-justice system would limit the nation’s ability to conduct interrogations, to obtain timely intelligence, and to detain dangerous terrorists. Yet, he argued, these costs were a price worth paying to forestall what he saw as the real danger to America: not jihadist terror but unchecked presidential and military power over the prosecution of war. Better to put the judges in charge.
The attorney general’s blind passion for his ideology has not changed. Mr. Holder would have us believe that lawyers are super-scrupled altruists who shed all their private biases the minute they assume public office — the minute they have, at last, the raw power to enforce those biases. But the truth is far from that. Schooled to regard the law as a tool for achieving “social justice” (which is to say, a tool for enforcing their biases) lawyers may be the least altruistic officials of all.
– Andrew C. McCarthy, a senior fellow at the National Review Institute, is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.