Attorney General Eric Holder Claims Vindication on KSM Trial

The Washington Post reports comments by Attorney General Eric Holder on the pace of military commissions at a news conference yesterday:

“I think that had we gone along the path that I announced at that time, we would not have had to close down half of Manhattan. It wouldn’t have cost $200 million a year,” Holder said at a news conference. “And the defendants would be on death row as we speak.” . . . “Not to be egocentric about that, but I was right,” Holder said when asked about his initial decision Monday. “I had access to documents, files, recommendations by the military, U.S. attorney’s offices in the Eastern District of Virginia, as well as the Southern District of New York. And I think the decision that I announced on that day was the right one. And I think that the facts and events that have occurred since then demonstrate that.” . . . “We unfortunately did not go down that road, I think, for reasons other than those connected to the litigation, I think largely political,” Holder said. “The opposition was largely political in nature. And I think this is an example of what happens when politics gets into matters that ought to be simply decided by lawyers and by national security experts.” Holder cited a recent case, the prosecution in New York of Libyan Nazih Abdul-Hamed al-Ruqai, also known as Anas al-Libi, as an example of how the civilian court system can be effectively used to try foreign terrorism suspects. He is accused of involvement in the 1998 East African embassy bombings. “It is our intention to hold him totally accountable, as we have others who were part of that conspiracy,” Holder said. “If you look at the history of the Article III prosecutions, you will see that they don’t take nearly as long as those that occur in the military system.. . . We hold people accountable.”

Three quick thoughts: First, Holder is probably right that a trial in federal court would have progressed more rapidly and smoothly than has the military commission case against the 9/11 defendants---though the 9/11 case would have been a monumentally complicated trial in federal court too. Building a new system is hard, and the commissions have had growing pangs that have been considerable. I supported Holder's decision to bring he 9/11 defendants to the United States, and there is no doubt that the United States has paid a cost for not doing so. The harder question is whether it is also going to reap some benefits by establishing the vitality of the military commissions (assuming it can ultimately do so) and whether it would have paid a different sort of price for implementing Holder's plan. The latter question is unanswerable. The verdict is yet out, in my opinion, on the former question. Second, even if Holder is right, it ill becomes the attorney to cast aspersions on---and speak in a way that tends to discredit---the law enforcement activities of the United States. This is a trial conducted by the country of which Eric Holder is the chief law enforcement officer. No small number of his own Justice Department prosecutors are working on this case. It is being conducted in accordance with an act of Congress that the administration he served sought from Congress and the president for whom he works signed. No, it's not the way he wanted to handle this particular case, but the attorney general of the United States does not get to whine about law enforcement and trial decisions of the president he serves. If he can't live with the outcome and wants to criticize it, he should resign. Otherwise, he should keep his peace and remember that his client---the United States---has a deep interest in making this trial a success. Third, Holder himself is not entirely without blame for the fact that KSM and his codefendants remain at Guantanamo and are not, as he puts it, "on death row as we speak." For while he announced his plan and sought an indictment against them, he actually didn't make the transfer happen. He announced his plan before bringing the defendants to New York, and then he waited while opposition built---the administration seemingly paralyzed by the criticism that developed. The administration has not made this mistake again. While Holder's plan may have been the right one, his execution of it was, well, kind of like the health care rollout---and he lost the moment as a result. He can talk all day about how political the opposition was, and right though he may be, he has to take responsibility for helping to create the political space for that opposition to develop.