As I noted in addressing Attorney General Eric Holder’s testimony this morning, the heart of his defense of the administration’s decision to try Khalid Sheikh Mohammed and the other 9/11 terrorists in civilian court is the howler that there is no real difference between a civilian trial and a military commission.
Holder absurdly claimed that he believed it would be easier to get a conviction in civilian court — notwithstanding that the more lax evidentiary standards in military commissions make it easier for the government to get its proof admitted. And that’s beside the fact that the jihadists wanted to plead guilty and proceed to execution in their military commission. (In Holder-world, conviction in an unpredictable civilian trial two years from now is somehow a surer thing than a military commission in which the defendants asked to plead guilty eleven months ago.)
Holder also claimed that there was no real difference between the protection of classified information in civilian and military courts. I explained in the aforementioned post why this isn’t true. But I neglected to mention the most obvious reason why it isn’t true: the Justice Department’s own ”protocols” for sorting out which enemy combatants get military commissions and which get civilan trials with all the rights and privileges of American citizens.
During today’s testimony, Holder was especially incoherent in trying to explain the rationale — which has resulted in the worst war criminals getting a civilian trial while lesser war criminals are stuck in military tribunals. He kept falling back on DOJ’s newly developed “protocols” for making this judgment. Scott Johnson has an excellent post at Powerline discussing these protocols. There are only three and they are very elastic. But for now, I want to focus on the second one (my italics):
B. Efficiency. The factors to be considered here are protection of intelligence sources and methods; the venue in which the case would be tried; issues related to multiple-defendant trials; foreign policy concerns; legal or evidentiary problems that might attend prosecution in the other jurisdiction: and efficiency and resource concerns.
So here are a couple of questions the Judiciary Committee might want to ask Holder in its follow-up:
1. If, as between civilian trials and military commissions, there is no real difference in the degree to which national defense secrets are protected, why does the Justice Department apply a protocol which asserts that the “protection of intelligence sources and methods” will be different in the two systems?
2. If the evidentiary rules in the two systems are virtual mirror images, why does DOJ apply a protocol that says evidence that is admissible in one system may not be admissible in the other? And, since Holder claims the government has an easier time proving its case in civilian court, can he identify a single category of evidence that is admissible in civilian court but not in a military tribunal?
On number 2, here’s a hint: One of the major attacks on the military commissions, advanced by lawyers like those in Holder’s firm who volunteered their services to the enemy, was that military commissions permitted too much hearsay and, potentially, evidence obtained by “torture.” They argued that the government should be required to prove its case under what they insisted were the more demanding standards that govern civilian trials.