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Monday, November 23, 2009

"You Have The Right To Remain Silent. Anything You Say..."

To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans. Mission Statement, Department of Justice website.

On November 13th, a Friday when President Obama was touring Asia, Attorney General Eric Holder announced that he was bringing "alleged" 9/11 mastermind Khalid Sheikh Mohammed and four other from Guantanamo Bay detention facilities to New York City to face trial in American civil courts for their roles in the September 11, 2001 attacks on New York City and Washington D.C. While I am not pleased with this decision, the decision itself pales in comparison to the statements and comments made subsequent to the announcement by the Attorney General. Reflecting on the mission statement above here are comments made by Holder to members of the media and on Capitol Hill.

On the News Hour with Jim Lehrer the day of the announcement the following exchanges:

After answering that in making the decision he, Holder, consulted with people at the Department of Justice and Department of Defense, and others, Holder was asked by Lehrer:

JIM LEHRER: Did you run it by President Obama?
ERIC HOLDER: Just informed him of the decision.

Holder goes on to explain that the President "believes the President should have hands off the Justice those things that are in the province of the Attorney General all he needs is to be informed."

Really. The President of the United States, Chief Executive of the United States Government, believes that the Attorney General can operate independently of the White House and counsel from the President? Is this in all cases or just ones that are extremely controversial politically? Is this to protect the Attorney General or the President? Later in the interview Holder says he spoke to his wife and his brother about the decision (his brother is retired from the Port Authority of New York). On the one hand you have your boss, who happens to be President of the United States and an attorney who, as we were reminded throughout 2008, is also a Constitutional Law professor, on the other you have your boss and big brother. One is given a phone call aboard Air Force One and being told what is going to happen, the other two have discussions about the impact of such a decision.

Further in the interview:

JIM LEHRER: Well, Mohammed was water-boarded, was he not?

On March 2, 2009 in a speech before the Jewish Council for Public Affairs Plenum Holder said, "As I unequivocally stated in my confirmation hearing before the U.S. Senate, waterboarding is torture." So the Attorney General states publicly he believes waterboarding is torture, admits KSM was tortured and now is going to prosecute him using statements that were revealed while being, in Holder's opinion, tortured. I know several attorney read this blog, help me with how this plays before a judge following our Constitution.

Further in that March 2009 speech, Holder also speaks of Obama's Executive Orders establishing inter-agency task forces to deal with the Guantanamo detainees and their prosecution or release. To follow, Obama establishes task forces and then allows the head of Justice to make unilateral decisions within the Executive Orders of the White House.

There are many sides to this upcoming trial. Among them are when were KSM and friends read their Miranda Rights, you know them, personally they were drilled into me as a child watching Kojak, Baretta, Adam-12, S.W.A.T. and other cop shows. We know that many a criminal has been kicked loose from prosecution because when apprehended and questioned he was not read his rights, or "Mirandized." Because KSM and the gang were picked up in a war by soldiers they were never Mirandized, so have they been now? Does evidence obtained before 2009 get to be entered in the court?

What happens if they are kicked loose because of our legal system and protecting the rights of the accused and the presumption of innocence? What of our President's declaration on Fox that he is confident the trial in New York would end in convictions and the execution of Mohammed and his co-defendants? Does that somehow inhibit the ability of the defendants to receive a "fair trial?" If Obama was merely informed of the decision to bring the Guantanamo 5 to New York for trial, and he was travelling around Asia when the announcement was made, how can he be confident in their prosecution and subsequent execution?

What has really pushed me on this issue however is the statements made by Attorney General Holder in Congress last week before the Judiciary Committee in questioning from Senator Lindsey Graham (video here of exchange). The head of our our Justice Department, the person who is supposed to ensure all work at the Department of Justice adheres to the mission statement above, when asked what happens if the most wanted man in the world, Osama bin Laden, is captured on a battlefield tomorrow. What is the captain, major, general who captures him supposed to do and when is going to be read his rights?

"That all depends."

So the head of Justice has no idea what happens if the person most wanted by the Justice Department, and everyone else, is captured? Shouldn't there be a policy and procedure manual "What to do when we capture Osama bin Laden?"

I am unsure if Eric Holder is competent is fulfilling his position of Attorney General and is bending backwards and sideways to protect his boss, Barack Obama; or if Eric Holder is incompetent and unable to understand the chain of command and operates without consulting the Administration and Obama. Either he exemplifies an Administration in over its head in running a country, or he exemplifies an incompetence within the Administration to effectively appoint and manage Department Secretaries and others.

Either way I am not feeling too confident about the ability of this Justice Department to effectively prosecute, and execute, the Guantanamo 5 and other terrorists captured by United States Military forces.

Remember the mission, " ensure fair and impartial administration of justice for all Americans."


Bob Schilling said...

Granted your concerns about Atty. General Holder, despite his many years of service in the Justice Department, what you YOU do about Khaled Sheik Muhammed? Would you imprison him without trial? Execute him?

The founders of our country were willing to fight the most powerful empire then on earth to assure such liberties as the right to a fair trial. If we compromise that, FOR ANYONE, NO MATTER HOW ODIOUS, I say we've let the terrorists win. They will have manipulated us into surrendering our cherished freedoms -- into becoming like them, fanatics driven by revenge at all costs.

The thought of compromising anyone's right to an open and public trial terrifies me. Either everyone has civil rights, or no one. I've lived in countries where these rights don't exist. People get arrested and just disappear. They get out if -- and when -- the authorities decide to let them go. I'd rather have KSM dancing in the streets of Manhattan -- which I think wildly unlikely -- than that.

Dennis C Smith said...


Military tribunals for enemy combatants not adhering to Geneva Convention. Why KSM and 4 others getting civilian trials and others in Guantanamo are having trials under the military? Where is the distinction? As Sen. Graham asked, what about Osama and other terrorists moving forward?

I am not willing to grant the same rights and privileges to foreign terrorists captured no foreign soil who are focussed on killing Americans as are granted to American citizens and/or those arrested on American soil. If that makes me a bigot or jingoist then so be it, I'll live with the labels.

poolman dave said...

actually holder has said he would do exactly as bob asked, imprisoning ksm for indefinite detention if he is acquitted. it is pretty ludicrous that while holder is prosecuting ksm in civilian court to show the rest of the world how "fair" we are, he and obama have guaranteed the outcome of the trial. i thought the basis of our criminal courts was innocent until proven guilty. also it will be interesting to see if a New York jury will give him the death penalty.

charles krauthammer has a great column in today's press telegram dealing with the absurdity in holder's logic, including noting that the reward for purposely killing civilians now is rewarded for a civilian trial whereas attacking the military results in tribunals. this trial will have the unintended consequence of rewarding acts of terrorism.