Holder’s embrace of Bush-Cheney continuing
From Col. Morris Davis, former chief prosecutor at the military tribunals at Guantanamo Bay, quoted by Spencer Ackerman:
"I’m not sure about Holder. Some of the folks I know and respect at DOJ think very highly of him. On the other hand, what I’ve seen on the national security front — basically adopting the same Bush-Cheney policies candidate Obama was firmly against — has been disappointing. I used to get perturbed when the ‘flip-flop’ accusation got thrown around, but it’s hard to argue that the label doesn’t fit the administration’s waffling view that military commissions are bad, no they’re good, no they’re bad again, oh wait maybe they’re good after all approach."
Ackerman says that Holder did much better in his testimony before the Senate Judiciary Committee than he had previously and that he put his Republican critics back on their heels a bit. But there’s still this basic contradiction at the core of Holder’s position:
[Sen. Lindsay] Graham found himself more in agreement with Holder than with Sessions. He portrayed himself as a Republican who doesn’t "reject all [civilian] courts" for terrorism cases, an implicit knock at his GOP colleagues. After Holder conceded that 48 detainees from Guantanamo Bay were "not feasible to transfer [and] too dangerous to prosecute," the two men found themselves in substantial agreement over designing a system of indefinite detention with annual administrative review in addition to permitting detainees to receive habeas corpus hearings before federal judges.
So Holder is stuck having to argue in favor of civilian trials for some detainees both on principled grounds (it provides real due process and helps confirm we have the right person) and on practical grounds (it sends a message of fairness to the rest of the world and helps increase America’s moral credibility), while simultaneously arguing in favor of indefinite detention with no trials of any kind for dozens of others. Cognitive dissonance, anyone?
And as Ackerman points out, there doesn’t appear to be any coherent standards for deciding which detainees get civilian trials, which get military tribunals and which get no trial at all and just get held forever:
Holder’s answer today, to the extent he gave one, was that those decisions are made on a case-by-case basis, which is an elision. And elisions just raise the cynical suspicion that the real criterion is whether there’s a strong case against someone — if there is, he’ll be tried in criminal court; if not, he’ll be tried according to the more lax process rules of the commissions; and if there’s really no evidence to be brought in court, he’ll be held indefinitely without charge.
And more from that second link:
Ari Shapiro had a piece for NPR this morning quoting Jamie Gorelick, the former deputy attorney general and 9/11 Commissioner, saying she heard from unnamed Justice Department sources that the department does have a more rigorous formula for making that determination. But she didn’t know what it was. And she didn’t know why the Justice Department hadn’t released it already.
