Attorney General Eric Holder’s critics have turned to a friend-of-the-court brief he signed in 2004, espousing the view that the danger of a too-powerful Executive Branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts. (h/t Politico)
The brief, filed in the case of Jose Padilla, argued that the president does not have the authority to imprison a U.S. citizen indefinitely and without access to counsel or courts. Padilla, suspected of plotting a dirty bomb attack, was detained as material witness in May 2002 and shunted into military custody about a month later. (He was later removed to the criminal justice system, prosecuted and was convicted in 2007 of conspiracy to murder, kidnap and maim people and two counts of providing material support to terrorists.)
Two of Holder’s most prominent critics from the Bush administration, former Deputy White House Counsel Bill Burck and Press Secretary Dana Perino, highlighted the brief in this March 10 story in the National Review. The brief adds a new wrinkle in the debate over the Obama administration’s handling of the so-called Christmas Day bomber Umar Farouk Abdulmutallab, while providing Holder’s adversaries another peg for criticism: Holder did not report the brief on his Senate questionnaire despite a requirement to do so.
Justice Department spokesman Matthew Miller told Politico that “the brief should have been disclosed,” but had been “ unfortunately and inadvertently” left out in the documents submitted to the Senate Judiciary Committee before Holder’s confirmation hearings.
“In any event, the Attorney General has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearings,” Miller said.
That is unlikely to be the last word on the subject. Sen. Jeff Sessions (R-Ala.), the ranking member of the judiciary committee, issued a statement Thursday morning saying he was “deeply concerned” about the lapse.
“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Sessions said. “This is an extremely serious matter and the Attorney General will have to address it immediately.”
The Obama administration has argued vigorously that placing bombing suspect Abdulmutallab in the custody of the FBI in no way limited intelligence-gathering efforts. Agents read the 23-year-old Nigerian his Miranda rights after about an hour of questioning, and he went silent.
Republicans argued he should have been transferred to to military custody and interrogated without benefit of the right to remain silent. The administration has countered that the suspect has begun cooperating with authorities and has provided a valuable stream of intelligence ever since.
The brief in the Padilla case said that the civilian justice system may pose obstacles to detention or intelligence-gathering, but that such risks represent “an inherent consequence of the limitation of Executive power.”
The NRO piece breaks out the key passage:
[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
Read the full brief below.