Eric Holder
Pilloried for his use of the federal court system as a counterterrorism tool, which critics say has serious limitations, Attorney General Eric Holder on Thursday night laid out for the first time what he sees as the limitations of the military commissions system in fighting terrorism.
“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,” Holder said in prepared remarks. “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.”
Specifically, Holder said, military commissions can only prosecute alleged terrorists who are affiliated with al Qaeda or the Taliban.
“That means members of other terrorist groups, such as Hamas, Hizbollah or the FARC [in Colombia] may not be tried in military commissions,” he said.
In addition, Holder said, “lone wolf terrorists” inspired by al Qaeda but not actually affiliated with the group are not subject to military commissions.
Holder cited the cases of Hosam Smadi, the 19-year-old arrested last year for trying to blow up a Dallas skyscraper, and Michael Finton, the Illinois man arrested for attempting to bomb a federal building in Springfield, Ill.
“With the proliferation of cheap and highly disruptive, portable bomb technology, these people are to be worried about,” one senior Justice Department official said. “But they would not fall under law of war detention authority or military commissions prosecution authority. They thought perhaps that they were conspiring with part of … al Qaeda. In fact, it was not so. We had undercover agents.”
U.S. citizens like Anwar Awlaki, the radical Muslim cleric tied to the Fort Hood shootings and the alleged Christmas Day bomber, cannot be tried in military commissions either, Holder said Thursday night.
“Military commissions may not be used against U.S. citizens … no matter what kind of horrendous acts they commit,” he said.
Asked whether Congress could pass further legislation to address any shortcomings of the military commissions, the senior Justice Department official said “you can change the options that are available” but that’s “not always that easy to do.”
“We ought not be so glib or assured to think that creating an entirely new legal framework for detention is easy or cost-free,” the official told Fox News in an interview last month. “You will have a period of uncertainty and a breaking-in period, and that may endure for quite a while.”
On Thursday, Holder also repeated statements he has made in the past, including the notion that, unlike in federal courts, military commissions cannot employ lesser charges to induce cooperation and disrupt terrorist plots “while evidence to prove terrorism charges is still being collected.”
Still, Holder did not mention any limitations of military commissions for prosecuting the likes of alleged Christmas Day bomber Umar F. Abdulmutallab and Khalid Sheikh Mohammed, the self-described architect of the attacks on Sept. 11, 2001.
Republicans have strongly criticized the Justice Department for its decision to “Mirandize” Abdulmutallab only hours after being arrested and to prosecute Mohammed and his alleged co-conspirators in federal court, a decision the administration is now reconsidering.
“Your actions have shaken my confidence in your leadership at the Department of Justice,” Sen. Jeff Sessions, R-Ala., ranking member on the Senate Judiciary Committee, told Holder during a hearing on Wednesday. “The course you’ve chosen on national security is steering us into a head-on collision with reality. The American people are not interested in terrorists being brought from Guantanamo to their own communities. … Pretending that terrorists can safely be treated as common criminals will not make it so.”
According Republicans, limitations of the federal court system include the “lawyering up” of terror suspects, which they say can inhibit the collection of intelligence, and less stringent protections of classified information in open court.
Nevertheless, despite any limitations posed by military commissions, Holder said such military trials have a vital role to play “in the proper circumstances.”
“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,” he said. “There is, quite simply, no inherent contradiction between using military commissions in select cases while still prosecuting terrorists in civilian courts.”
Holder has already referred six cases to the military commissions, and he said he “expects” to refer even more.
Since taking office, the Obama administration has worked with Congress to revise and improve the rules governing military commissions, according to Holder.
On Thursday, Holder insisted that despite what others may claim, he knows the United States is at war, and he is “determined to win.”
“I know we can, and I am certain we will,” he said in part of a keynote address at the annual awards dinner for the Washington-based Constitution Project. “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.”