Holder slams ban on Gitmo de­tainee trans­fers

The Washington Times Weekly - - Geopolitic­s - BY JERRY SEPER

At­tor­ney Gen­eral Eric H. Holder Jr. on Dec. 9 said con­gres­sional ef­forts to pro­hibit the trans­fer of de­tainees from Guan­tanamo Bay, Cuba, to the United States for any pur­pose, in­clud­ing to stand trial, “would un­wisely re­strict” the govern­ment’s abil­ity to pros­e­cute ter­ror­ism sus­pects.

At a news con­fer­ence and in sep­a­rate letters to Se­nate Ma­jor­ity Leader Harry Reid and Se­nate Mi­nor­ity Leader Mitch McCon­nell, Mr. Holder said the ban — con­tained in a 2011 year-end spend­ing bill ap­proved by the House on Dec. 8 — would “un­der­mine” his abil­ity to pros­e­cute cases, “thereby tak­ing away one of our most po­tent weapons in the fight against ter­ror­ism.”

“It would there­fore be un­wise and would set a dan­ger­ous prece­dent with se­ri­ous im­pli­ca­tions for the im­par­tial ad­min­is­tra­tion of jus­tice for Congress to re­strict the dis­cre­tion of the ex­ec­u­tive branch to pros­e­cute ter­ror­ists in these venues,” he said. “The ex­er­cise of pros­e­cu­to­rial dis­cre­tion has al­ways been and must re­main an ex­ec­u­tive branch func­tion.”

Mr. Holder said the ban “went well be­yond ex­ist­ing law” and, in or­der to pro­tect the Amer­i­can peo­ple as ef­fec­tively as pos­si­ble, “we must be in a po­si­tion to use ev­ery law­ful in­stru­ment of na­tional power to en­sure that ter­ror­ists are brought to jus­tice and can no longer threaten Amer­i­can lives.”

Cur­rent law al­lows the Jus­tice Depart­ment to bring de­tainees to this coun­try for trial as long as the depart­ment gives Congress 45 days’ no­tice of the trans­fer. The new con­gres­sional ban is in­cluded in a hastily ap­proved year-end spend­ing bill passed by the House on Dec. 8 by a 212206 vote that blocks the ad­min­is­tra­tion from spend­ing money on a re­place­ment prison or any pris­oner trans­fers.

If the mea­sure be­comes law, it would rep­re­sent a ma­jor set­back for Pres­i­dent Obama, who in one of his first acts in of­fice vowed to close the U.S. mil­i­tary prison at U.S. Naval Base Guan­tanamo Bay, Cuba.

Mr. Holder has long ad­vo­cated the try­ing of ter­ror­ism sus­pects in U.S. civil­ian courts, sug­gest­ing last year that Khalid Shaikh Mo­hammed, the self-pro­claimed mas­ter­mind of the Sept. 11 attacks on the World Trade Cen­ter and the Pen­tagon, and four of his al­leged co-con­spir­a­tors would be tried in fed­eral civil­ian court in New York City. At the time, he called the de­ci­sion part of an on­go­ing process to close the prison at Guan­tanamo Bay, where they are be­ing held.

Repub­li­can law­mak­ers and other con­ser­va­tives, in­clud­ing for­mer At­tor­ney Gen­eral Michael B. Mukasey, crit­i­cized the move as reck­less and dan­ger­ous.

The pro­posal got an­other jolt in Novem­ber when a jury in New York ac­quit­ted sus­pected al Qaeda ter­ror­ist Ahmed Khal­fan Ghailani on all but one of 285 charges — in­clud­ing ev­ery mur- der count — in the 1998 bomb­ings of U.S. em­bassies in Africa that killed 223 peo­ple and in­jured more than 4,000. Ghailani was trans­ferred from Guan­tanamo in June 2009 to stand trial in New York, the first Guan­tanamo de­tainee to be tried in the civil­ian court.

He was found guilty of one count of con­spir­acy and faces 20 years to life in prison when sen­tenced. Mr. Holder’s of­fice had ruled out the death penalty in the case.

On Dec. 9, Mr. Holder said the bill elim­i­nates the Obama ad­min­is­tra­tion’s abil­ity to hold ac­count­able those “who have com­mit­ted mass murder” against U.S. cit­i­zens. He de­scribed the spend­ing bill as an “ex­treme and risky en­croach­ment” on the author­ity of the ex­ec­u­tive branch to de­ter­mine when and where to pros­e­cute ter­ror­ist sus­pects.

He also said such de­ci­sions should be based on the “facts and cir­cum­stances of each case and the over­all na­tional se­cur ity in­ter­ests of the United States.”

In his let­ter to Mr. Reid, Ne­vada Demo­crat, and Mr. McCon­nell, Ken­tucky Repub­li­can, Mr. Holder said Mr. Obama, as com­man­der in chief, had de­ter­mined that the pros­e­cu­tion of ter­ror­ism sus­pects in fed­eral courts in the United States for the crim­i­nal ter­ror­ism of­fenses Congress has en­acted should be avail­able to pro­tect the nation.

He de­scribed the process as “a pow­er­ful and well-es­tab­lished tool that has been used suc­cess­fully in hun­dreds of cases.”

Mr. Holder also said the Jus­tice Depart­ment had been un­able to iden­tify any par­al­lel in the his­tor y of the nation in which Congress had in­ter­vened to pro­hibit the pros­e­cu­tion of par­tic­u­lar per­sons or crimes. He said it would be “a mis­take to tie the hands of the pres­i­dent and his na­tional se­cu­rity ad­vis­ers now.”

On mov­ing Guan­tanamo de­tainees to the U.S. to stand trial, Rep. Peter T. King, New York Repub­li­can and rank­ing mem­ber of the House Com­mit­tee on Home­land Se­cu­rity, said when the plan was an­nounced last year, “Now that Khalid Shaikh Mo­hammed, the worst of the worst, and his fel­low ter­ror­ists are set to be moved to New York, what is the pres­i­dent’s plan to keep Lower Man­hat­tan and all our com­mu­ni­ties safe?

“Un­for­tu­nately, Congress and the Amer­i­can peo­ple were never al­lowed a role in this de­bate,” Mr. King said. “This is an up­set­ting pat­tern for an ad­min­is­tra­tion that promised an un­prece­dented level of trans­parency.”

Mr. Mukasey had called the move a re­turn to a “Sept. 10, 2001, crim­i­nal jus­tice model,” say­ing it was a “de­ci­sion I con­sider to be not only un­wise, but in fact based on a re­fusal to face the fact that what we are in­volved with here is a war with peo­ple who fol­low a re­li­giously based ide­ol­ogy that calls on them to kill us.”

Faced with grow­ing op­po­si­tion, the Obama ad­min­is­tra­tion de­cided to re­view its trial plans for de­tainees.


“The ex­er­cise of pros­e­cu­to­rial dis­cre­tion has al­ways been and must re­main an ex­ec­u­tive branch func­tion,” At­tor­ney Gen­eral Eric H. Holder Jr. said. He has long ad­vo­cated the tr ying of ter­ror­ism sus­pects in U.S. civil­ian cour ts.

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