Eric Holder

9/11, Barack Obama, detainees, enemy combatants, Eric Holder, Military Commissions

We need a ‘Rule of War Act’ (Graham negotiating 9/11 trial, Obama steps in, paging C-SPAN)

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Colleagues of Senator Lindsay Graham have leaked that he and the White House are negotiating over where and how to conduct the 9/11 trial of Khalid Sheikh Mohammed and his four co-conspirators. In additional, President Barack Obama will apparently take a personal role in the negotiations and may overrule Attorney General Eric Holder’s decisions to this point.

We need a statute, a ‘Rule of War Act’, with no special date, sunset provisions, or naming it after some personage or group.

It would be the civilian authority providing for the common defense, while informed by the governed.

First, the entire negotiation and [formalized, federal debate *] needs conducted in the open — televised on C-SPAN — over the course of this year.

The top issues should be placed in simply, uniform terms on the November 2 national election ballot to express the people’s will. Congress should then create the statute in 2011 and the President can veto or sign it.

We should learn from the past, cover those enemies we now detain, and keep in mind this war may take some time and there will be future wars.

Here is my further two cents, my general thoughts on the statute’s provisions, for what they are worth.

When enemy war criminals are captured, we should prosecute them by military tribunal solely based upon our national security, what protects our people;

Lawful enemy belligerents should be detained for as long as hostilities last;

Unlawful enemy belligerents should be detained for as long as each remains a threat;

America’s foreign enemies should be afforded none of our Constitutional rights;

The Judiciary’s sole role should be classified detention review akin to determining probable cause;

and all long-term enemy detentions should take place isolated far from the civilian populace.

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Note: * revised text.

9/11, Abdulmutallab, Andy McCarthy, Barack Obama, Eric Holder, Flight 253, Richard Reid

Richard Reid ‘A Mistake, Not a Precedent’ says Andrew McCarthy (actually, Eric Holder set the precedent)

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Andrew McCarthy writes in the NRO today “We need not repeat the mistakes of Reid with Abdulmutallab.”

First, there was still very strong reason to believe that a second wave of attacks was imminent. Reid’s attempt strengthened these suspicions. In contrast to today’s relative calm, the country was on the direst kind of war footing: in fear of a raft of new domestic attacks only weeks after a strike deadlier than Pearl Harbor. In exigent circumstances, you tend to go with what you know, because you don’t have the luxury of time to think through something better.

Second, although no one seems to remember this now, the anthrax attacks had just happened. Again, they fortified the sense that the next mass-murder attack was just around the corner. In December 2001, it was all hands on deck to pore over available intelligence reports, look for patterns, and figure out where the next hit might come. Forging a new enforcement paradigm for the litigation of terrorism cases was not a priority.

McCarthy points out Reid was just one of many attacks we saw. Allowing Richard Reid to remain silent did nothing to prevent Flight 253. Instead of making that same mistake, President Bush had thousands of terrorists interrogated and dozens of attacks were prevented; not affording Constitutional rights to terrorists (besides Reid) prevented those attacks. Initially repeating a past mistake with Abdulmuttalab is not mitigated by the fact President Bush “did it” eight years earlier.

McCarthy went on to write:

That brings us to a third point Democrats would prefer to forget: “The Wall,” the internal regulations adopted by the Clinton Justice Department in 1995, had made it practically impossible for intelligence agents to compare notes with criminal investigators and prosecutors. Indeed, the Wall prevented the apprehension of two of the 9/11 terrorists, a dereliction that blew any chance to foil the plot.

The Wall was also a mistake, one that cost lives. I don’t hear anyone in the Obama administration saying we need to regard it as a precedent that binds our hands today.

My words: No, they don’t say it; Eric Holder just does it. He has a habit of repeating major mistakes.

Between August 1997 and October 2000, then Deputy Attorney General Eric Holder was formally informed three times that the Wall was preventing the sharing of information between FBI intelligence and FBI criminal investigators.

Eric Holder did nothing to fix a mistake that would have prevented 9/11. By conducting a criminal investigation of the previous administration’s foreign policy, Holder greatly increased the same kind of risk aversion within our intelligence agencies that led to the Wall’s creation.

Lots of people die when Attorney Generals and Presidents make mistakes. Some number of us will live to regret the one just repeated with Abdulmuttalab; others will not be alive to regret it.