4-14-2010By Daphne Eviatar
Senior Associate, Law and Security
Cross-Posted at The Huffington Post
Democratic members of the Senate Judiciary Committee today urged Attorney General Eric Holder to stick to his initial determination that the alleged September 11 plotters should be tried in civilian court, and not bow to partisan politics on what should be a legal determination.
“I think that the degree to which this dialogue has escalated is really very unhealthy,” said Senator Dianne Feinstein (D-Cal.), calling the recent attacks on Holder “reprehensible.”
“Democrats did not do to Bush following 9/11 what has been done to this administration.. . . I believe the best interest of the people of this nation are served by the Attorney General, and the President, having maximum flexibility as to which venue these defendants should be tried in…I have never seen anything quite like this.”
Feinstein was referring to pending legislation that would require the Obama administration to try the 9/11 defendants in the recently-created military commissions rather than in traditional federal courts, where almost all terrorism cases have been tried in the past. Another pending bill would require the administration to place all terror suspects in military custody rather than have them questioned by the FBI, which has the most experienced terrorist interrogators. Feinstein denounced these efforts at the Senate hearing as based on deliberate ignorance.
“The record is ignored,” she said. “It doesn’t matter that the Bush administration brought 200 terrorists to justice under Article 3 courts,” she said, apparently referring to a Human Rights First study analyzing the successful prosecutions of self-described Islamic terrorists since 9/11.
“It doesn’t matter that the military commissions, fraught with controversy, have convicted only three terrorists, two of whom are already out.”
Citing the recent guilty pleas of convicted terrorists Najibullah Zazi and David Headly, she said: “the fact of the matter is that Article 3 courts have other charges they can use if they don’t have evidence to sustain a pure terrorists charge,” referring to the civilian federal court system authorized by Article 3 of the U.S. Constitution. “You should have that option,” she said to Holder. “A lot of the attacks are just to diminish you. You should not buy into that. You should stay strong.”
Senators Russell Feingold (D-Wisc.), Richard Durbin (D-Ill.) and Sheldon Whitehouse (D-R.I.) all echoed Feinstein’s concerns.
Attorney General Eric Holder this morning gave no indication whether the 9/11 plotters will ultimately be tried in a civilian court or military commission, although he promised that the decision would be made within “a number of weeks.”
Holder said that “New York is not off the table as a place where they might be tried,” yet said the administration would “take into consideration” local objections.
Although local officials had initially supported hosting the trial, after a downtown real estate group protested about the disturbance to local businesses, officials such as New York Mayor Michael Bloomberg and Senator Charles Schumer reversed their stance.
Holder made clear this morning, though, that the trials could be held in federal court even if they don’t take place in downtown Manhattan. “The Southern District of New York is a much larger place than simply Manhattan,” said Holder. “There’s also the possibility of trying the case in other venues beyond New York.”
Senator Jeff Sessions (R-Ala.) hammered Holder on his initial decision to try the case in a New York court, then criticized him for wavering on the decision in response to local objections, and concluded: “I hope you will reevaluate this and we will soon have clarity about what the policy of the Department of Justice is.”
Holder wouldn’t say where the 9/11 defendants will ultimately be prosecuted, he did defend the track record of civilian federal courts, which he said have prosecuted close to 400 terrorists since 9/11, relying on recently-released Justice Department numbers.
Holder pleased some of his critics, however, by repeating that the administration still intends to hold 48 detainees “who are too dangerous to transfer but not feasible to prosecute.”
Senator Lindsey Graham (R-S.C.), who’s been pushing Congress and the administration to support legislation that would create a scheme for indefinite detention without trial within the United States, seized on the opportunity to note that the rules for indefinite detention based on “dangerousness” remain unclear.
“I would urge you to work with Congress to see if you can retain flexibility,” Graham said to Holder. “If you’re a member of Al Qaeda you’re a continuing threat to the world,” he said, adding: “holding a member of Al Aaeda who is a continuing threat until they die in jail is okay with me.”
Asked by Sen. Benjamin Cardin (D-Md.) whether there would be a review process for those indefinitely detained prisoners who could be left to die in jail, Holder said: “that’s something we ‘re still working on.”
Holder didn’t specifically say whether that process would be developed by the executive branch or should be created by Congress, although he indicated that an interagency review was ongoing and that he’s “hoping to have something we will be willing to share and put in place in a relatively short time.”