Eric Holder

9/11, Barack Obama, Debra Burlingame, Eric Holder, Greg Craig, Khalid Sheikh Mohammed, KSM, Military Commissions

Disingenuous Durbin; AG Eric Holder helps Senator mislead about KSM death penalty

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When Khalid Sheikh Mohammed and his fellow 9/11 conspirators attempted to plead guilty, Army Colonel Steve Henley, the judge presiding over the pretrial hearing, was not sure if the Military Commissions Act allowed him to impose the death penalty. That was the reason KSM withdrew his offer. Henley asked for legal briefs from the parties yet the military commissions were shut down before he could rule and the resulting appeals to the D.C. Circuit could take place. Facts be damned, this has become a Democrat talking point.

During last Wednesday’s Senate Judiciary Committee hearing, there was this exchange:

SENATOR RICHARD DURBIN: I want to make it clear that I am not creating or trying to cast any kind of negative impression about military commissions … Is it not true though that under the procedural rules of military commissions there are some limitations compared to Article III courts, for example, when it comes to capital offenses?

ATTORNEY GENERAL ERIC HOLDER: Yes. In an Article III court, a person can plead guilty to a capital offense; that is not allowed in a military commission.

DURBIN: There would have to be, in fact, some trial even if they wanted to plead guilty under those circumstances. [slide video to 1 hour 14 minutes]

Beyond disingenuous, former White House Counsel Greg Craig is quoted in the Harvard Law Review from an April 6 interview:

[Craig] also noted that support for military commissions is particularly surprising in light of the fact that they are not allowed to sentence detainees to capital punishment. “If you care about capital punishment for KSM and these individuals, then you would support what Eric Holder recommended.”

The MCA authorizes the death penalty.

As Debra Burlingame points out, Congress could clear up any ambiguity by amending the statute. She adds:

“Why would anyone who supports an Article III capital plea vote against it? The defendant wants to plead guilty. Also, the plea allocution in military court is way, way more extensive than in civilian court. Remember Richard Reid’s famous plea allocution (where the judge famously said, “you’re no warrior”), that took less than an hour. Military court takes days. They get every little last detail on the record. The judge will ask KSM all the kinds of questions that would have formulated the evidence in a full prosecution at trial.”

The Obama administration unsuccessfully tried running this sham past her last year:

“When I was at the DOJ meeting with families last June, [a senior official on the DOJ’s Guantanamo Task Force] tried to tell families that KSM could not be executed with an MCA guilty plea and I called him on that misstatement. I said, wait a minute, that it was an ambiguous statute, the judge asked for briefs, and the case was suspended without an answer, but that Congress could cure the problem. [The senior official] was red-faced, and admitted I was right.”

The MCA says a judge in an military commission can make a finding of guilty without the panel voting:

“Sec. 949i. Pleas of the accused

“(a) Entry of Plea of Not Guilty.–If an accused in a military commission under this chapter after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the military commission shall proceed as though the accused had pleaded not guilty.
“(b) Finding of Guilt After Guilty Plea.–With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
…
“Sec. 949m. Number of votes required

“(a) Conviction.–No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
“(b) Sentences.–
(1) No person may be sentenced by a military commission to suffer death, except insofar as–
“(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
“(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
“(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
“(D) all the members present at the time the vote is taken concur in the sentence of death.

The MCA also says:

“No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.”

It is reasonable to suggest that a judge can accept a guilty plea and impose those sentences without the concurrence by three-fourths of the panel.

It follows that a judge could also impose the death penalty for capital offenses subsequent to a guilty plea; there has been no ruling to the contrary and Holder and Durbin both know it. With no law on the books against their casting “negative impression[s] about military commissions,” they will go on misinforming until the American people vote them out of office (and off C-SPAN). It is punishment enough that Craig has been reduced to misinforming President Obama’s old newspaper.

9/11, al Qaeda, Andy McCarthy, Debra Burlingame, detainees, Eric Holder, Gitmo, Guantanamo

AG Eric Holder defends the wrong ‘kids’

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Eric Holder alleges that American lawyers are “patriots” if they defend terrorists, to include those who murdered the eight children pictured above — the eight kids that al Qaeda murdered on 9/11. He asserts those lawyers should not have “their reputations dragged through the mud.”

Andy McCarthy took issue Friday with Wednesday’s testimony by Eric Holder before the Senate Judiciary Committee:

So now we know why the self-proclaimed “most transparent administration in American history” continues to stonewall rather than reveal the official responsibilities of Justice Department lawyers who volunteered their services to America’s enemies during wartime. Like any good Democrat, Eric Holder says he is doing it for the children.

The attorney general bristled during Senate testimony on Wednesday that he was “not going to allow these kids” to have their reputations dragged “through the mud.” The “kids” coddled in this touching paternal display include 45-year-old Tony West, who now supervises hundreds of lawyers as chief of DOJ’s Civil Division. It’s been 17 years since Tony the Kid first served as an influential official in the Clinton Justice Department. From there, he went on to nine-year stint as a hot-shot partner at a prestigious San Francisco law firm — in his spare time running both Barack Obama’s lavish presidential campaign in California and the defense of John Walker Lindh, the “American Taliban” convicted on terrorism charges after making war on his country.

They grow up so quickly, don’t they? Kids like 40-year-old Neal Katyal, the current deputy solicitor general who, as Byron York observes, was a Georgetown law professor when he volunteered to represent Salim Hamdan, Osama bin Laden’s personal driver and bodyguard, who was apprehended transporting missiles in Afghanistan.

Then there’s precocious 38-year-old Jennifer Daskal. Over Holder’s dead body will anyone drag her reputation through the mud, insinuating that she spent her pre-DOJ years cheerleading for terrorists and running down her country when, in point of fact, Daskal spent her pre-DOJ years … cheerleading for terrorists and running down her country.

Yet McCarthy also pointed out the failure to press Holder:

Republicans sat mum as their Democratic counterparts lauded the Gitmo Bar for its “courage” and falsely accused critics of claiming that lawyers who flocked to al-Qaeda’s service are “disqualified” from future government service. Mightn’t one GOP senator have pointed out that critics are simply demanding the transparency and accountability that President Obama and his attorney general promised? They certainly seemed to have reservoirs of indignation when Al Gonzales was attorney general. … READ THE REST

Why is Holder hiding the “kids” at the Justice Department? Could it be that they themselves damaged their own reputations by the manner they so “bravely” and willingly defended America’s enemies?

Debra Burlingame and Thomas Joscelyn recently wrote in The Weekly Standard of Daskal’s “heroics”:

On November 2, 2005, Dana Priest of the Washington Post reported that the “CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe.” The Post, citing the government’s security concerns, did not name the countries where the facilities were located. But just a few days later, on November 6, 2005, Human Rights Watch revealed the countries in a posting on its website. The organization said it had “collected information that CIA airplanes traveling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania.” The organization encouraged European officials to investigate further, and the Europeans did just that.

In May 2006, the European parliament sent a delegation to Washington to discuss the CIA’s secret detention and interrogation program with various interested parties. The delegation met with Human Rights Watch on May 10. Here is how a document produced by the European parliament describes the meeting:

The delegation met with John SIFTON (Counterterrorism Researcher) and Jennifer DASKAL (US Advocacy Director) who provided the delegation with circumstantial evidence linking Poland and Romania to secret CIA prisons, including flight records, statements by Polish and Romanian government officials, as well as precise details of specific planes used by the CIA. Both recognized that they do not have formal evidence of these allegations, but stressed the indications of these facts were actually very strong. Their information was that there had been detainees in CIA custody well before the Guantánamo Bay detention center had been established.

Although the Europeans listed Daskal’s colleague, John Sifton, as a “counterterrorism researcher,” he was really researching the CIA—not the terrorists. In The Guantánamo Lawyers, a collection of short, sentimental memoirs written by dozens of lawyers, who sanitized their clients’ histories and glorified their work on behalf of war on terror detainees, Sifton offered an intriguing account of how Human Rights Watch assisted in uncovering details of the CIA’s operations.

“Throughout the years after 2001, journalists, human rights investigators, and lawyers managed to obtain a surprising amount of information about U.S. detention and interrogation operations,” Sifton wrote. He elaborated (emphasis added):

Amnesty International, Human Rights Watch, and the [New York] Times found and interviewed former CIA detainees. FOIA litigation by the Associated Press, the ACLU, and the Center for Constitutional Rights produced information about former CIA detainees at Guantánamo—lower-level prisoners who had been kept short-term in CIA detention. Every piece of the story seemed to come from a different source. .?.?.

Lawyers and human rights groups worked together, sharing “intelligence” to uncover what intelligence agencies were doing with detainees. When I was working at Human Rights Watch, I managed to piece together a good deal of information about the CIA’s detention facilities in Afghanistan by collecting accounts from former CIA detainees at Guantánamo, mostly from notes provided by habeas attorneys. I called and met with numerous Guantánamo attorneys to inquire whether their clients had been in CIA custody. In several instances, attorneys I reached were not aware that their clients had been in CIA custody until I explained that their clients’ own accounts matched those of other CIA detainees. In one notable example, I spoke with one of the editors of this book, Mark Denbeaux, after I came to suspect his client had been in a secret site in Afghanistan—the detainee had described one of his earlier places of detention in ways that closely matched other detainees’ descriptions of a CIA site in Afghanistan. The next time Mark went to Guantánamo, he confirmed this previously secret fact with the detainee.

Human Rights Watch published Sifton’s investigation of the CIA’s detention facilities in Afghanistan in a February 2007 report entitled “Ghost Prisoner.” The report draws on graphic descriptions offered by former detainees. That same report was “reviewed and edited” by Jennifer Daskal.

The America people have a right to know whether “heroes” and “patriots,” like Jennifer Daskal, are involved in formulating the detention policy of the United States and decisions on where and whether to prosecute war criminals. Eric Holder ought to disclose the information about the “kids” for the real children, the ones al Qaeda has already murdered, as well as those they are still trying to kill.