Magazine December 21, 2009, Issue

Shifty Shifting

(Kevin Dietsch/UPI)
Our changeable attorney general doesn’t do law; he does politics

‘This,” said Eric Holder, “is almost a ‘Trust me’ thing.” The attorney general of the United States was trying to reassure Alice Hoagland, whose 31-year-old son, Mark Bingham, lost his life with the other heroic passengers who wrested control of Flight 93 from four suicide hijackers on Sept. 11, 2001. Al-Qaeda’s likely target was the U.S. Capitol, and, eight years later, Holder was at that same Capitol, attempting to justify treating acts of war — the deadliest ever committed on U.S. soil — as mere crimes. 

In November, Holder announced what he insists is his own decision to vest Khalid Sheikh Mohammed and four other jihadists with the constitutional rights once enjoyed by Mark Bingham and the nearly 3,000 other Americans they massacred. The Obama administration is transferring this al-Qaeda quintet from military custody at Guantanamo Bay, where they’ve been held as enemy combatants and charged as war criminals under the authority of a congressionally approved military commission. They will be brought to New York City, where, in what used to be the shadow of the Twin Towers, they will be swaddled in the Bill of Rights at a civilian trial in a majestic Manhattan courthouse. That courthouse is the epicenter of the law-enforcement approach to terrorism regnant in the 1990s while Holder served as the No. 2 official in the Clinton Justice Department — a time when nearly as many terrorists were pardoned as prosecuted, while al-Qaeda serially attacked U.S. interests.

Alice Hoagland had flown in from California to hear Holder explain himself to the Senate Judiciary Committee. She intercepted him as he was making his way out of the hearing room. After hours of Holder’s uneven, unconvincing, and occasionally uninformed testimony, Hoagland was badly in need of reassurance. Composed but clearly disturbed, she told the attorney general, “I take great exception to your decision to give short shrift to the military commissions.” So do dozens of the 9/11 victims’ family members, along with millions of Americans who have seen the video of Holder’s dreadful performance. 

Holder is better in one-on-one situations than he is in confrontational testimony. A native New Yorker who grew up in bustling East Elmhurst and studied hard to earn his way into Columbia Law School, Holder is unfailingly polite and down-to-earth. The first thing one hears from his friends — and he has many, spanning Washington’s partisan and ideological divides — is that he is a warm and genuinely nice man. But “genuinely nice” is not the same as “genuine.” This same Eric Holder is a sharp-elbowed political animal and an inveterate careerist. He is also a member in good standing of the international Left’s legal vanguard. However earnestly delivered, his assertions about the benefits of civilian trials for war criminals — like his explanations of other controversial events that have marked his career — make logical sense only through the prism of politics. He often is at sea when fielding rudimentary legal questions, and his record suggests that you cannot be sure that what he says today is what he’ll be saying tomorrow.

“There are reasons why bringing this case in an Article III court, when it comes to the admissibility of certain evidence, is really the right way to go,” he told Hoagland. This sort of empathy-wrapped shrewdness works well with non-lawyers and credulous reporters. They are instantly put on the defensive when veteran litigators lace their chatter with legalese like the “admissibility of certain evidence” (translation: “There are technicalities here that you wouldn’t understand, regarding matters I’m not at liberty to discuss”) and “Article III courts” (translation: “those presided over by independent federal judges, in contrast to military judges, who are part of the executive branch”). On a roll, the attorney general added that the “admissibility” of this “certain” evidence “really maximizes our chances of getting a successful outcome.” Persuasive though it sounds, this is nonsense.

The hurdles for admitting evidence are lower in military commissions, and the government’s ability to protect classified information is greater. More to the point: A year ago, 9/11 architect Khalid Sheikh Mohammed announced that he and his four co-conspirators wanted to forgo their commission trials, plead guilty, and proceed to execution. As Sen. Jon Kyl (R., Ariz.) pointed out during Holder’s testimony, it is impossible for the chances of a successful prosecution to be “enhanced in Article III courts” when the accused have already “asked to plead guilty before a military commission and be executed.” But instead of taking the guilty pleas, and despite the fact that three combatants had already been convicted in commissions, the Obama administration suspended military trials then under way for 21 war-crimes suspects, including the 9/11 five. 

Like the rash announcement that Guantanamo Bay would be closed by January 2010 despite the absence of any plan for dealing with the 200-plus detainees lodged there, this act of disdain for military adjudication was driven by ideology and politics, not by law and analysis. It was designed to vindicate Obama’s attacks, in the run-up to the 2008 election, on post-9/11 counterterrorism practices. Holder was then serving as an Obama campaign adviser and angling to be attorney general. He argued that treating jihadists as wartime enemies had been “needlessly abusive and unlawful” and charged that Bush officials had “secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants, and authorized the use of procedures that violate both international law and the United States Constitution.” 

But campaign rhetoric eventually gave way to the realities of governing. Releasing detainees en masse would have been political and practical suicide, but trying most of them in civilian courts is impossible — the evidence against many of them consists of foreign intelligence and non-Miranda interrogations. Suddenly, the Obama administration found that it wasn’t so urgent to close Gitmo. Suddenly, wartime detention without trial for enemy combatants wasn’t such a bad thing after all. Suddenly, Holder concluded that military commissions are fully appropriate — but not for the worst war criminals, the five 9/11 jihadists who, a short time ago, stood ready to conclude their cases at the end of a noose. 

We have been at war with Islamist terrorists for over eight years now — about half as long as they have been at war with us. In that time, they have committed all manner of atrocities. But of the thousands of jihadists who have been killed, captured, or detained since 2001, the 9/11 plotters stand out. To submit them to the civilian justice system makes a mockery of the war, betrays its victims, and turns the American courts into a weapon by which the enemy can gather intelligence and broadcast propaganda. It is inconceivable that civilian trials would have been permitted in any previous American war. In those conflicts, war was understood as the military and diplomatic resolution of a geopolitical dispute, not the judicial disposition of a legal controversy. 

But the Obama administration views the war as a legal matter. And its maneuvering to insulate the president from this unpopular ideological decision has been comically transparent: The president was, conveniently, en route to the Far East when Holder announced the civilian-court transfer; the White House maintains that the decision was a call for Holder alone to make (in fact, the attorney general has no authority to order war prisoners out of military custody — that’s a presidential call); and Holder purports not to have consulted the commander-in-chief on this momentous matter, instead seeking the counsel of his wife and his brother. 

To further the myth of a fully detached Obama, the administration projects a fully engaged Holder, hitting the books, agonizing for long hours over the most difficult decision of his career. But at the hearing, Sen. Lindsey Graham (R., S.C.) exploded the myth by asking the most elementary legal question: What is the precedent? “Can you give me a case in United States history,” he asked, “where an enemy combatant caught on a battlefield was tried in civilian court?” After several seconds of excruciating silence, Holder stammered, “I don’t know, I’d have to look at that.” What, pray tell, has he been looking at, if not that? Senator Graham, an experienced Air Force lawyer, informed the nation’s top law-enforcement official that there has been no such case. 

Holder was equally adrift on the policy implications of his decision. What happens, Senator Graham continued, if we capture Osama bin Laden tomorrow? Does he get Miranda warnings, a defense lawyer during his interrogation, and a civilian trial? A flustered Holder answered, “That all depends.” Even as he disputed Graham’s contention that he was “criminalizing the war,” Holder demonstrated that he was doing just that. The government, he explained, had neither “the desire [nor] the need” to question bin Laden because “the case against him at this point is so overwhelming.” It apparently did not occur to Holder that United States might have an interest in doing something with bin Laden other than prosecuting him — for instance, interrogating him about ongoing plots. That, presumably, is Dick Cheney stuff — the sort of thing that was done with KSM, with the result that many Americans are alive today who might otherwise have missed the spectacle of his civilian trial.

The elevation of politics over duty, coupled with a willingness to say almost anything in order to defend this elevation, is vintage Holder. As deputy attorney general, he engineered President Clinton’s last-day pardon of Marc Rich, one of the FBI’s most-wanted fugitives for nearly two decades, a man indicted for millions of dollars in fraud, tax evasion, and trading with the enemy (Iran). Grilled by Congress about the resulting scandal in 2001, Holder copped only to poor judgment in failing to inform himself of Rich’s nefarious record. He swore that in 1999 “Mr. Rich’s name was unfamiliar to me” when the fugitive’s powerhouse lawyer, former Clinton White House counsel Jack Quinn, beseeched him to lean on federal prosecutors to dismiss the case. Even though the DOJ’s rigorous pardon process is overseen by the deputy attorney general himself, Holder claimed to have “gained only a passing familiarity with the underlying facts of the Rich case” in the ensuing months, during which time he helped Quinn skirt DOJ’s pardon regulations — and kept the application secret, preventing prosecutors from weighing in against clemency. 

Describing Holder’s actions as “unconscionable,” a congressional investigation called his testimony dubious and self-serving. It was worse than that: The committee failed to appreciate that in 1995, when he was U.S. attorney for the District of Columbia, Holder had investigated Rich. Not only did his office file a civil complaint documenting its familiarity with Rich’s crimes, his underlings conducted extensive negotiations with Rich’s lawyers, even taking the highly irregular step of obtaining an affidavit directly from the fugitive. As the Wall Street Journal reported on April 13, 1995, Holder himself bragged about the $1.2 million settlement he extracted from Rich’s Swiss trading company, Clarendon Ltd., which had won lucrative U.S. contracts by concealing Rich’s controlling interest in it.

So unfamiliarity was not the issue. Holder did Rich’s bidding for the crassest of reasons. First, the boss wanted it done. Rich’s ex-wife, Denise Rich, had poured a fortune into sundry Democratic causes, including the Clinton Library and Hillary Clinton’s Senate campaign. Second, Holder hoped to be named attorney general in a Gore administration, and Quinn — a Gore confidant — was in a position to help make that happen. Holder had cultivated Gore from the start of his tenure at Justice, using his influence to squelch the appointment of an independent prosecutor to probe the vice president’s violation of campaign-finance laws. Given Holder’s history of political favors, how surprised should we be by reports that the Justice Department recently shut down a New Mexico federal grand jury’s investigation of corruption allegations against an important Obama ally, Gov. Bill Richardson? 

Rich’s wasn’t the only controversial pardon. Worse were those of Puerto Rican terrorists, which violated the most basic Justice Department guidelines. The FALN had carried out more than 130 bombings against American targets, killing six people and wounding many others. They weren’t exactly penitent: One operative explained to the sentencing judge, “You say we have no remorse. You’re right.” Federal pardon rules require contrition, but the FALN terrorists were not only devoid of regret, they had not even sought clemency. Holder processed applications on their behalf anyway, ignoring protests from prosecutors and victims’ families. Holder also ignored the criticism of FBI director Louis Freeh, who predicted that the move “would likely return committed, experienced, sophisticated, and hardened terrorists to the clandestine movement.” As former Clinton political guru Dick Morris has observed, the FALN pardons were designed to enhance Hillary Clinton’s appeal to New York’s large Puerto Rican population during her Senate bid. Holder’s support gave President Clinton a fig leaf of Justice Department approval, and when Congress demanded an explanation, Holder stonewalled, claiming executive privilege.

Only months before the FALN commutations, when jihadists had killed over 200 innocent people in the bombings of the U.S. embassies in Kenya and Tanzania, the Clinton administration boasted of its unshakable antiterrorist resolve. The pardons showed the insincerity of that posture. They also set the precedent (there’s that word again) for Clinton to pardon two Weather Underground terrorists, Susan Rosenberg and Linda Sue Evans, on the same day he pardoned Rich, only three months after al-Qaeda killed 17 American sailors on the U.S.S. Cole. 

This insouciance about mortal threats to the United States had the Democrats scrambling after 9/11. As Bush went to war rather than to court, reversing Clinton’s policy of counterterrorism-by-subpoena, Democrats anxiously put on the airs of national-security seriousness. Into the breach stepped Ol’ Reliable, Eric Holder. In a series of 2002 interviews on CNN, the former deputy attorney general declared that the nation was “in the middle of a war” and that it should detain enemy captives as combatants for as long as it took — “until the war is over.” He specifically rejected the notion that al-Qaeda operatives have rights under international law: Terrorists, he said, “are not, in fact, people entitled to the protection of the Geneva Convention.” After all, he explained, “we clearly want to . . . have an ability to interrogate them and find out what their future plans might be, where other cells are located.” As for Guantanamo Bay, though he’d never been there, Holder blasted “those in Europe and other places who are concerned about the treatment of al-Qaeda members,” suggesting that they “should come to Camp X-ray and see how the people are, in fact, being treated.”

But the political winds soon shifted, and the ever-accommodating Holder shifted along with them. Like many white-shoe law firms, Holder’s Covington & Burling took up the defense of America’s enemies with an unseemly passion, donating its high-priced services to at least 18 enemy combatants. As his partners joined the burgeoning al-Qaeda Defense Bar, railing against military detention and military commissions, Holder changed his tune. The same Gitmo he had defended was now “an international embarrassment.” It had to be closed, he told the left-leaning American Constitution Society in June 2008, because “a great nation should not detain people, military or civilian, in dark places beyond the reach of law.” And never, he declared, had he believed he’d see a day when the “Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention.” 

A few months later, at his confirmation hearing to become attorney general, Holder testified that waterboarding was everywhere and always torture. (His predecessor, Michael Mukasey, had jeopardized his own confirmation by refusing to concede as much.) Holder has since reopened six-year-old investigations against CIA interrogators that were closed by prosecutors — another unpopular decision that the president purportedly had nothing to do with. Holder’s Office of Professional Responsibility is pursuing ethics probes against Bush-administration lawyers whose memos justified harsh tactics; at the same time, his Justice Department has quietly filed a brief urging the federal courts to adopt the Bush administration’s legal construction of torture. Holder has conceded in testimony that even if waterboarding caused pain severe enough to satisfy the legal definition of torture (it doesn’t), it would still not meet the definition if, as in the case of the U.S. military’s waterboarding of trainees in counter-interrogation courses, the government’s primary motive was not to torture the victim. Obviously, a motive to glean life-saving intelligence rather than to torture would have the same legal ramifications. But Holder doesn’t do law; he does politics.

Politicized law enforcement has real consequences. It paralyzes the intelligence community, whose operatives can only conclude that their superiors’ assurance that they are acting legally will be worth nothing when they face a retaliatory investigation after power changes hands. It undermines the “rule of law” — a phrase that, for Holder, is a verbal tic but not much else. The public sees that there is one standard of justice for the politically connected, a lesser one for most everybody else, and a chilling one for the president’s political adversaries. A Justice Department mired in politics forestalls accountability: It can talk all day about “transparency” even as Congress’s inquiries are parried or ignored. 

In the matter of KSM & Co., politicized justice undermines humanitarian law and rewards the worst sort of depravity — all for the sake of settling political scores. While the 9/11 attackers move up to a bells-and-whistles civilian trial, the Obama administration is keeping military commissions for lesser jihadists, such as the Cole bombers. Holder’s decision thus gives terrorists in the military system the powerful argument that their consignment there is arbitrary. At the same time, the message to our enemies is: Attack military assets and get military justice, but murder civilians and you win gold-plated due process. 

The Manhattan courthouse is the stage KSM has craved since the day of his capture in Pakistan six years ago. His transfer there virtually guarantees a lengthy, difficult trial — the jihadists’ lawyers have already announced that they will plead not guilty, that they will wear their crimes like a badge of honor and use the forum to attack American policies. At a minimum, the terrorists will have a couple of years to sift through sensitive government files that will be discoverable under civilian rules. In the military system, the government could have assigned a lawyer with a security clearance to screen accused war criminals from raw intelligence; in civilian court, they will have the right to represent themselves and to review discovery without attorney interference. 

The terrorists’ presence in New York will present a heightened security risk. The last time al-Qaeda was in Manhattan for a trial (the embassy-bombing case), one terrorist attempted to attack the judge in court, and another maimed a prison guard in an escape attempt. Moreover, bringing KSM here undermines the rationale for keeping less notorious jihadists at Gitmo, substantially increasing the likelihood that federal judges will eventually order trained terrorists released within our borders.

Why invite all this when the 9/11 plotters were ready to plead guilty? On the campaign trail, Holder promised the Left a “reckoning.” The new administration would hold the Bush administration to account for its purported crimes. Understanding the legal emptiness and political explosiveness of such a promise, however, Holder has been reluctant to do more than “investigate.” Thus the restless international Left — which includes Obama’s core of support — has exhorted the United Nations and foreign tribunals to invoke “universal jurisdiction” to bring war-crimes charges against Bush officials. In Europe this spring, Holder expressed his willingness to cooperate with such investigations, including one ongoing in Spain. 

A civilian trial for KSM & Co. will be an unparalleled coup for these efforts — more so even than the mounds of classified memos Holder has already made public over the strenuous objections of current and former CIA directors. The Left’s shock troops at the Center for Constitutional Rights, who worked on our enemies’ behalf with many lawyers now staffing Holder’s Justice Department, will exploit any new revelations to intensify calls for foreign prosecutions. The Obama administration will get credit for delivering on its promised reckoning but will avoid the political damage that would result if DOJ were to bring the case itself.

Or maybe not. Maybe Eric Holder just thought a civilian trial for KSM was the right thing to do. After all, this is really a “Trust me” thing.

– Mr. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.

In This Issue


Politics & Policy

Trust Science

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Politics & Policy

Shifty Shifting

‘This,” said Eric Holder, “is almost a ‘Trust me’ thing.” The attorney general of the United States was trying to reassure Alice Hoagland, whose 31-year-old son, Mark Bingham, lost his ...
Politics & Policy

Lani’s Heir

  Washington Post columnist Michael Gerson has called Eric Holder “the most destructive member of Barack Obama’s Cabinet.” The description is apt. The attorney general’s questionable judgment extends far beyond the ...
Politics & Policy

VAT Attack

The U.S. has a smaller government than most rich countries do, but we don’t have much lower corporate tax rates or top income-tax rates. That’s one conclusion to be drawn ...

Books, Arts & Manners

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One of Us

When Sarah Palin was announced to the world as John McCain’s vice-presidential running mate in summer 2008, she was almost completely unknown outside Alaska. She had made a few feisty ...


Politics & Policy


THE MEDAL Bear, would you like to see my purple heart? Terrified, I followed Uncle Eddie up the stairs, expecting to see—God knows, what hideous thing, what awful hidden wound from the Great War. He ...
Happy Warrior

Rising Tide

The Swiss minaret ban and the leaked climate e-mails are really the same story — or, more precisely, are symptoms of the same disease. In the Times of London, Oliver ...
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The Talented Mr. Moto Terry Teachout should be sorry! How can he discuss John P. Marquand and his works (“Be Careful What You Ask For,” November 23) without any mention of ...
Politics & Policy

The Week

‐ Tiger is probably glad he didn’t give his wife any pointers on how to swing a 9-iron. ‐ On a party-line vote, the Senate decided to start debating Harry Reid’s ...
Politics & Policy

The Long View

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On Tuesday afternoon in Manhattan, cops carried out a routine arrest of an 18-year-old New York activist who is suspected of disabling police cameras by spraying paint on them. The person is suspected of this for very good reason: There are videos starring the perpetrator carrying out the act in question. ... Read More

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