Holder Takes on Right and Left

Speaking tonight to liberal lawyers, Attorney General Eric Holder stoutly defended the administration's counter terrorism policies, including its intended use of military tribunals, as well as its decision to push for federal trials for the 9/11 suspects.  In remarks seemingly designed to respond to critics from his right and left, Holder declared, flatly, that because "we are a nation at war [and] in this war, we face an intelligent, nimble and determined enemy,"  the government had to use weapons that transcend any "rigid ideology or narrow methodology."  Holder delivered the keynote address at the Constitution Project's annual awards dinner in Washington. The Project's leaders have been critical of the administration's assertion of the state secrets doctrine and its willingness to send Gitmo detainees to military tribunals. (They've also praised Holder and the Justice Department for numerous new initiatives.) 

Within the framework of the "rule of law," he said, "I know that some of those weapons may be unpopular.  But when it comes to protecting the American people, the charge that we are "coddling terrorists" is no more accurate than the equally vehement cry that we have "rubber stamped the Bush Administration's counterterrorism policies. In fact, we would be derelict in our most basic duties if we did not rely on the full scope of our law enforcement, intelligence, military and diplomatic capabilities to keep the American people safe."Within the framework of the "rule of law," he said, "I know that some of those weapons may be unpopular.  But when it comes to protecting the American people, the charge that we are "coddling terrorists" is no more accurate than the equally vehement cry that we have "rubber stamped the Bush Administration's counterterrorism policies. In fact, we would be derelict in our most basic duties if we did not rely on the full scope of our law enforcement, intelligence, military and diplomatic capabilities to keep the American people safe."
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On military tribunals versus federal trials: "This Administration rejects the false choice critics would have us make, because if we were to exclusively follow only one path while blocking the use of the other, we would undoubtedly fail in our fundamental duty to bring every terrorist to justice.  That is simply not an outcome we can accept."

After defending Article III trials for terrorists, Holder defended the creation and use of military tribunals, which many in his audience oppose: "Those who denigrate these commissions must remember that, while federal courts can handle most terrorism prosecutions, in some cases, military commissions are not only appropriate, but also necessary to convict and neutralize terrorists.  Last year, the Obama Administration spent a great deal of time and effort working with Congress to revise the commission rules to ensure that they are consistent with the rule of law.  Congress has taken extraordinary steps to reform and improve these commissions since they were first introduced."

Holder's full speech is below:

    I'm especially grateful for this opportunity to tell the Constitution Project's leadership and membership how much I appreciate your commitment to the cause of justice, to the promise of equal justice, and to our nation's most essential and enduring values.

    On behalf of the Department of Justice, let me thank you, in particular, for your strong support of the Access to Justice Initiative that we launched last month.  This new office - led by Harvard Law Professor Larry Tribe - reflects an historic assurance that expanding access to legal services is, and will continue to be, a national priority.  With the same dedication that you showed in calling for this initiative, I have no doubt that many of the attorneys and advocates gathered in this room will contribute to its success.

    As we look toward this future, and toward the progress we seek to realize, I'd like to talk with you tonight about the unprecedented challenges that - together - we must overcome.

    Just yesterday, I had the chance to discuss some of these challenges with the members of the Senate Judiciary Committee.  The Justice Department has serious responsibilities - none more serious than keeping the American people safe - and our approach to these responsibilities understandably provokes robust debate, and even criticism.  Now, as I look around this room, I realize that, just like yesterday, I'm speaking to some who have not always agreed with the entirety of our approach when it comes to protecting our national security.  In fact, one of the things I've learned over the last year is that it simply is not possible, as Attorney General, to make everyone happy.  But, despite this fact, I also know that everyone in this room shares a common goal: the goal of protecting America's safety, America's interests and America's values, by adhering to the rule of law.  So tonight, let me tell you exactly where I stand when it comes to meeting this essential goal.

    Let's start with one stark fact: We are a nation at war.  In this war, we face an intelligent, nimble and determined enemy.

    Let me assure you: I know the seriousness of the threat we face.  I know that - both in distant countries as well as within our own borders - there are people plotting to kill Americans.  I begin each day with a briefing on the latest, and most urgent, threats made against us in the preceding twenty four hours.  And I go to sleep each night thinking of how best to keep our people safe.

    Like every person sitting in this room, like the President and those who serve this administration, and like every Member serving in our Congress, I am determined to win this war.  I know we can, and I am certain we will.  But victory and security will not come easily.  And they won't come at all if we approach this work by adhering to a rigid ideology or narrow methodology.

    But just as surely as we are a nation at war, we also are a nation of laws.  This means that the government's powers are defined both by our tangible laws - the Constitution, statutes, court precedents - and also by the basic principle of the rule of law.  Within this framework, I believe we must do everything within our legal power to protect the American people.  Just as on a battlefield, every arm of the government must use every appropriate weapon available to win this war.  I know that some of those weapons may be unpopular.  But when it comes to protecting the American people, the charge that we are "coddling terrorists" is no more accurate than the equally vehement cry that we have "rubber stamped the Bush Administration's counterterrorism policies."  In fact, we would be derelict in our most basic duties if we did not rely on the full scope of our law enforcement, intelligence, military and diplomatic capabilities to keep the American people safe.  This means we must use both statecraft and war craft, both our criminal justice system and our military authorities, both our civilian courts and our military commissions, to defeat our enemies.  The best traditions of our country - of a responsible, respectful government, of the rule of law, of the neutral administration of justice - call for this.

    The Administration's - and the Justice Department's - commitment to using every available tool to fight terrorism also reflects a simple fact about the war in which we are now engaged: we face a variety of threats, threats that require us to be both aggressive and innovative.

    It is no exaggeration to

    It says something, though, about the quality of the debate when the idea of using both the Article III justice system and military commissions has become deeply controversial. This Administration rejects the false choice critics would have us make, because if we were to exclusively follow only one path while blocking the use of the other, we would undoubtedly fail in our fundamental duty to bring every terrorist to justice.  That is simply not an outcome we can accept.

    For example, the proposal by some respected leaders in Congress to ban completely the use of civilian courts in prosecutions of terrorism-related activity obscures some basic facts and allows campaign slogans to overtake legal reality.  The reality is this: Since 9/11, more than 400 individuals have been convicted of terrorism or terrorism-related offenses in civilian courts.  Without civilian law enforcement and civilian courts, we would be denied the use of what has

    Just look at what our civilian courts have helped to achieve.  Over the past year, I am proud to say that the Justice Department, working closely with our partners in the intelligence community, was extraordinarily successful in disrupting plots, obtaining intelligence and incapacitating terrorists.  And our ability to use our criminal justice system - including civilian courts - was a key part of this success.

    For example, we detected and disrupted a plot to detonate explosives in Manhattan's subways.  Najibullah Zazi has already pleaded guilty to terrorism charges in this case, and we have also charged several of his associates with participating in the plot and related crimes.

    We secured a guilty plea from David Headley for assisting in the deadly attacks in Mumbai in 2008 and for plotting another attack in Denmark.  As part of his plea, Headley has already provided valuable intelligence to the government about terrorist activities abroad.

    Through the hard work of our federal law enforcement officials, we have obtained the cooperation of Umar Farouk Abdulmutallab, who was charged in civilian court with attempting to bomb an airliner as it landed in Detroit last Christmas.  Although I obviously cannot discuss the intelligence he has provided, I can tell you that it has been not just valuable, but actionable.

    We convicted Aafia Siddiqui of attempting to murder U.S. military and law enforcement agents in Afghanistan.  Siddiqui is a Pakistani physicist who, when captured in Afghanistan, was found with explosives, as well as information about nuclear, chemical and biological weapons and descriptions of U.S. landmarks.  She later opened fire on U.S. personnel.  The Justice Department under the Bush Administration indicted her in civilian court in 2008, and she was convicted two months ago in New York.

    These are just a few of many successes that resulted from the combined efforts of experienced prosecutors, intelligence agents, and the President's national security team.  Each has made America safer.

    On the other hand, military commissions are also useful in the proper circumstances, and we need them, too.  Those who denigrate these commissions must remember that, while federal courts can handle most terrorism prosecutions, in some cases, military commissions are not only appropriate, but also necessary to convict and neutralize terrorists.

    The truth is that the reformed commissions draw from the same Constitutional protections that underlie our civilian courts - the key difference being that, in commissions, evidentiary rules reflect the realities of the battlefield and the difficulties of conducting investigations in a war zone.  I have faith in the framework and promise of our military commissions, which is why I've referred six cases to the reformed commissions for prosecution.  And I expect to refer additional cases.

    There is, quite simply, no inherent contradiction between using military commissions in select cases while still prosecuting terrorists in civilian courts.  As I have said, no matter what one thinks of the bigger questions surrounding the debate about courts and commissions, it is important to understand their practical differences and how they must affect the choice of forum.

    First of all, the commissions only have jurisdiction to prosecute individuals who are affiliated with al Qaeda, the Taliban, or affiliated forces.  That means members of other terrorist groups - such as Hamas, Hizbollah or the FARC - may not be tried in military commissions.  Neither can the likes of Hosam Smadi or Michael Finton, two lone wolf terrorists who, though inspired by al Qaeda, were not part of it when they attempted to blow up buildings in our country last year.  And, under current statute, military commissions may not be used against U.S. citizens like Anwar Awlaki or Jose Padilla, no matter what kind of horrendous acts they commit.

    Second, our civilian courts cover a much broader set of offenses available than the military commissions, which can only prosecute some violations of the laws of war.  In addition to the many federal statutes for terrorism-related offenses, prosecutors can also make use of other charges - like making false statements to investigators, passport or document fraud, or firearms offenses - to convict suspected terrorists.  This means that terrorist plots can be disrupted even while evidence to prove terrorism charges is still being collected.  It means the government can rely on a range of levers to secure suspected terrorists' cooperation - something that has repeatedly produced useful, actionable intelligence.  And it means that civilian courts can provide just punishment for a broader range of bad acts.

    Third, our civilian courts have well-established rules, significant experience, and more than 200 years of precedents.  In short, they have a reliability that establishes credibility.  Although I'm confident we've done a good job of reforming and improving military commissions, they do not, yet, have the same time-tested track record of civilian courts.

    Fourth, there is the issue of international cooperation.  Our civilian courts are well respected internationally.  Our allies are comfortable with the formal and informal mechanisms to transfer terrorism suspects to the United States for trial in civilian court.  As we prove the effectiveness and fairness of military commissions, I expect our allies will take notice.  And I hope they will grow more willing to cooperate with commission trials.

    It is unfortunate and unhelpful that some of these facts have been obscured as we engage in a national conversation about how best to prosecute terrorism offenses.  As I have said, I know

    Meeting this responsibility has never been more difficult.  In this time of war, we must pursue victory in a way that's pragmatic, effective, aggressive and true to the principles enshrined in our founding documents.  The security of our country - and the protection of its values and ideals - is our shared concern.  And it must become our common cause - one that unites us, strengthens us, and extends our nation's greatest traditions.  You can, you must, remain leaders in that effort.

    Thank you.