Posts Tagged ‘Counter-terrorism’
Monday, March 29th, 2010

After announcing that Khalid Sheikh Mohammed and four alleged 9/11 co-conspirators would be tried in federal court, Attorney General Eric Holder assembled a team of prosecutors from Alexandria, Va., and Manhattan — an elite squad for which “failure is not an option,” as Holder put it during a congressional hearing in November.

But as the possibility of a civilian trial grows more remote, the team’s participation in the trial of the century has become an open question. If President Barack Obama decides to place the defendants before a military commission, the Defense Department will have final say on the composition of the trial team. Moreover, several members of the original military trial team remain at the two agencies.

Holder and his national security adviser, Amy Jeffress, reportedly decided who would be part of the civilian trial team. Current and former Justice Department officials told Main Justice that team includes John DavisRay Patricco and James Trump of the U.S. Attorney’s Office for the Eastern District of Virginia; and Michael Farbiarz, David Miller and David Raskin of the U.S. Attorney’s Office for the Southern District of New York. The Justice Department’s National Security Division is supporting their efforts.

The offices declined to comment on the composition of the 9/11 prosecution team, as did a spokesman for the National Security Division.

“This is still a Justice Department case,” said Joe DellaVedova, military commissions spokesman.  ”Whatever decision the administration comes to, we will fully support and stand behind it.”

Davis and Raskin were named in January as likely candidates to lead the team. Davis, head of EDVA’s Criminal Division, has worked on several high-profile terrorism cases, including the prosecution of John Walker Lindh, who was convicted in 2002 of aiding the Taliban. He was an Associate Deputy Attorney General from 2004 to 2006.

Raskin stepped down as chief of SDNY’s terrorism unit last year — presumably, to work on the 9/11 cases full time — and is now the office’s Senior Trial Counsel. He was one of the prosecutors in the death penalty trial of Zacarias Moussaoui, the only defendant convicted in connection with the 9/11 attacks. More recently, Raskin has been overseeing the prosecution of Ahmed Khalfan Ghailani, the first Guantanamo Bay detainee transferred into the criminal justice system.

Of the others on the team, Patricco is Deputy Chief of the EDVA’s Criminal Division, and Trump is the office’s Senior Litigation Counsel. Farbiarz is co-chief of SDNY’s new Terrorism and International Narcotics Unit, and Miller is a line prosecutor in the General Crimes Unit and a former lawyer in the Justice Department’s Counterterrorism Section.

As the White House reviews Holder’s decision to try the alleged 9/11 conspirators in federal court, it has signaled its intent to invigorate the military tribunals. Last week, the Pentagon tapped Bruce MacDonald, a retired three-star admiral with national security and international law bona fides, to run the war court.

And now that the health care bill has been signed into law, Obama’s advisers are turning their attention to shuttering the Guantanamo detention center. Obama appears open to a deal that would see Mohammed prosecuted in a military tribunal in exchange for Republican support for the prison’s closure, but negotiations are ongoing — and could be for some time.

In the meantime, lawyers in both agencies are waiting to find out whether and to what extent they’ll be a part of history.

The Defense Department and the Justice Department work closely on the military commissions, and several military prosecutors double as federal prosecutors. The chief war crimes prosecutor, Navy Capt. John Murphy, is an Assistant U.S. Attorney from New Orleans. He would decide the makeup of the prosecution team if Obama chooses a military tribunal over a civilian trial.

Before it disbanded in November when Holder decided to prosecute the accused 9/11 plotters in federal court, the military prosecution team reflected the inter-agency partnership. Justice Department lawyers accounted for four of the trial team’s seven members and included George Toscas, now a Deputy Assistant Attorney General in the National Security Division, and Ed Ryan, now the acting U.S. Attorney for the Western District of North Carolina. The top military prosecutor on the team, retired Army Col. Robert Swann, remains in the military commissions office.

“Could that team be reassembled? It’s possible,” said a Defense Department official. “But right now, we’re waiting for information like everybody else.”

Eric Bruce, a former federal prosecutor who worked on military prosecutions of high-value detainees in the Bush administration, said each side brought strengths to the 9/11 team. Military prosecutors had a firm grasp of the structure of the commissions and the rules, while Justice Department prosecutors brought a keen sense of how the case should be assembled and presented to the panel of jurors, said Bruce, who later served as Attorney General Michael Mukasey’s national security adviser.

The Justice Department provided “a wealth of historical knowledge” because the FBI, Joint Terrorism Task Force and federal prosecutors from the Southern District of New York had investigated Mohammed for several years, added Bruce, now a partner at Kobre & Kim LLP.

“If you’re a DOJ prosecutor, and you’ve never stepped foot in a military commission, of course it’s natural to rely on military prosecutors who’ve done 45 courts martial,” he said. “But they probably haven’t spent the last nine years tracking KSM’s movements around the world.”

Military prosecutors, several of whom have experience prosecuting complex drug and violent-crime cases, bristle at the notion that the 9/11 cases are beyond their talents. But few would disagree that Raskin and Davis, the leaders of the Justice Department team, are at the top of the list of a select group of experienced counterterrorism prosecutors. One Justice Department official said there’s no doubt they’d assist in a military prosecution — if  they’re willing.

“It’s a pretty big request to ask people to give up their lives to move to Cuba for a trial in a system that they are not intimately familiar with,” said Christopher Morvillo, a former prosecutor in the Southern District of New York.

Added Morvillo, now counsel at Morvillo, Abramowitz, Grand, Iason, Anello & Bohrer P.C.: “It would be above and beyond the call of duty — but it’s also the case of a lifetime.”

Said Bruce:  ”It would be tough, but I think they have made a lot of sacrifices so far, and they’re dedicated prosecutors. I would think that if they could do it, they would do it.”

Thursday, January 21st, 2010

White House Press Secretary Robert Gibbs told reporters on Thursday he believes Attorney General Eric Holder was responsible for deciding to try the alleged Christmas Day airplane bomber in federal court and not treat him as an military prisoner subject to interrogation.

Robert Gibbs (White House)

The administration’s Director of National Intelligence, Dennis C. Blair, and a number of administration critics have said that Umar Farouk Abdulmutallab should have been questioned by trained anti-terrorism investigators rather than by the FBI. The critics say the opportunity to gain valuable intelligence now may be lost, since Abdulmutallab is being treated as a criminal suspect with rights against self-incrimination.

Sen. Jeff Sessions of Alabama, the Senate Judiciary Committee’s top Republican, sent a letter today to the Attorney General, asking who made the decision. After Sessions sent his letter and Gibbs made his comment, Holder’s spokesman, Matthew Miller, issued a statement defending the decision to try Abdulmutallab.

“Those who now argue that a different action should have been taken in this case were notably silent when dozens of terrorist were successfully prosecuted in federal court by the previous administration,” Miller said in the statement, citing the prosecutions of al-Qaeda operatives Richard Reid and Zacarias Moussaoui. Read Miller’s full statement here.

Democrats are reeling from the surprise victory on Tuesday of Republican Scott Brown in a special election for the Massachusetts Senate seat left open by the death of Sen. Edward Kennedy (D). The GOP victory has thrown President Barack Obama’s health care reform plans in disarray and caused many Democrats to question whether the party has moved too far to the political left.

Holder has been under attack by Republicans for other national security decisions as well, including trying alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court in Manhattan, reopening an investigation into whether certain CIA interrogations of suspected terrorists broke the law, and successfully arguing for the release of Bush-era Department of Justice legal memos that authorized torture.

Here’s the transcript from today’s White House press briefing:

Q    … who made the decision to try Abdulmutallab in federal court?  Was the president aware of this decision when he began being processed in the legal system?

MR. GIBBS:  Well, again, understand that the decision to try him was handed down in an indictment that I think took place many days afterward.  So, yes, all the team was involved in that.

Q    So the decision was made over a period of days.  I mean, there was a time between which he was taken into custody on Christmas Day and a time in which the decision was made that –

MR. GIBBS:  Well, understand this, there was a period of time in which he was taken into custody, a period of time in which experienced FBI agents interrogated him, received valuable intelligence from him.  He was arraigned at a later period of time, and later than that was indicted.

Q    And who made the decision to try him in federal court?  Did the president make that call?

MR. GIBBS:  I believe that decision is made by the Attorney General.

This story was updated at 8:17 p.m.

Thursday, January 21st, 2010

Sen. Jeff Sessions of Alabama, the Senate Judiciary Committee’s top Republican, told his colleagues today that he will formally ask the Justice Department to identify who decided that the alleged Christmas Day airplane bomber should be treated as a civilian and not as an enemy combatant.

Jeff Sessions (Getty Images

The FBI — not the military — took Umar Farouk Abdulmutallab into custody on Dec. 25 on U.S. soil after he allegedly attempted to blow up a Detroit-bound airliner. Director of National Intelligence Dennis Blair testified yesterday on Capitol Hill that his office was not consulted about the use of FBI agents and that special terrorism investigators should have handled Abdulmutallab, according to The Washington Post.

It is unclear who made the decision to treat Abdulmutallab as a civilian. FBI Director Robert Mueller testified yesterday before the committee that the events were “fast-moving” and authorities had “no time” to get other investigators in place. But Mueller said decisions were made “appropriately,” including the decision to read Abdulmutallab his Miranda rights.

Sessions said yesterday that it seemed the decision was made “on the fly.” He added that the FBI’s handling of Abdulmutallab could have precluded the U.S. government from obtaining valuable intelligence.

“I think this is a matter of serious import,” Sessions said yesterday. “I don’t think we have clarity of rules. We need to get it straight.”

Democrats voiced support for the decisions made in the aftermath of the alleged attempted bombing. Sen. Dianne Feinstein (D-Calif.), who chairs the Senate Intelligence Committee, said yesterday that the FBI’s actions were “totally appropriate.” Senators were unable to point to an example of authorities putting an alleged terrorist apprehended on American soil immediately into military custody.

Here’s the letter Sessions and Republican Sens. Orrin Hatch (Utah), Chuck Grassley (Iowa), Jon Kyl (Ariz.), Lindsey Graham (S.C.), John Cornyn (Texas) and Tom Coburn (Okla.) sent today to Attorney General Eric Holder about the matter:

We are writing to ask who within the Department of Justice made the decision on Christmas day to treat Umar Farouk Abdulmutallab as a criminal suspect, entitled to Miranda warnings and the right to counsel, rather than as a unprivileged enemy belligerent subject to military detention and a full opportunity to gain intelligence. We would also like to know the basis for this decision, including whether the administration has a protocol or policy in place for handling al Qaeda terrorists captured in the United States.

At yesterday’s hearing before the Senate Judiciary Committee, FBI Director Robert Mueller described how Joint Terrorism Task Force agents initially interrogated Mr. Abdulmutallab without Miranda warnings for the purpose of obtaining intelligence information.  He stated that this short initial interrogation occurred before the terror suspect was taken into surgery and that the decision to provide Miranda warnings and pursue criminal charges was made shortly thereafter “in consultation with the Department of Justice and others in the administration prior to the agents going back in later that evening to interview him.” Director Mueller declined to name the person within the Department who made the decision, stating that he would first have to get approval from the Department. Nonetheless, he made clear the decision was not made “at the local level.”

The Department of Justice’s decision to afford this terrorist Miranda warnings and a civilian prosecution appears to have been made without soliciting input from the Department’s administration partners in the war on terrorism. According to testimony before both the Judiciary Committee and the Homeland Security and Governmental Affairs Committee, the Department officials who made this decision failed to consult key officials who also have a major role in counterterrorism and intelligence gathering. Dennis Blair, the Director of National Intelligence, testified that he was not consulted.  Similar testimony was provided by Director Mueller, Homeland Security Secretary Janet Napolitano, and the Director of the National Counterterrorism Center, Michael Leiter. Furthermore, Director Mueller testified he did not know whether Defense Secretary Robert Gates was consulted on this decision, which is remarkable given that Mr. Abdulmutallab appears to fit cleanly within the Military Commissions Act definition of an “unprivileged enemy belligerent.”

We believe the Department’s hasty decision to pursue criminal charges against Mr. Abdulmutallab deprived our intelligence agencies of a critical opportunity to interrogate an al Qaeda-trained terrorist who was fresh from training in Yemen. Had Mr. Abdulmutallab been transferred to military custody as an unlawful enemy belligerent, our government would have had more time to gain an understanding of the terrorist training and recruiting network on the Arabian Peninsula, as well as the activities of al Qaeda in Nigeria. More importantly, a thorough and unrushed interrogation might have revealed information to detect and disrupt the next terrorist attack. However, because Mr. Abdulmutallab was given Miranda rights and ceased cooperating, that information is now lost.

It is important that Congress fully understand the basis for the decision in this case and the process by which it was reached so that we can be assured that an appropriate process is in place to address the next terrorist who is captured and detained. To that end, please let us know who within the Department made the decision on Christmas day, as well as the basis and rationale behind the decision. Additionally, please let us know whether a protocol or policy is in place to guide the administration’s action in the next terrorism case.

This post has been updated from an earlier version.

Wednesday, January 20th, 2010

FBI Director Robert Mueller told members of the Senate Judiciary Committee today that the bureau is working hard to strengthen its counter-terrorism efforts to prevent another event like the attempted Christmas Day bombing of a U.S. airliner.

Robert Mueller (file photo by Ryan J. Reilly / Main Justice)

Mueller listed several terrorist plots and threats that have been stopped in the past year, including the alleged bombing plans of airport shuttle driver Najibullah Zazi, who was arrested in Denver in September. But he said there are new threats from homegrown terrorists, extremists from new sanctuaries and lone offenders from the United States.

“We can and must do more in response to these threats,” Mueller said at the hearing on improving counter-terrorism efforts and communication between different government agencies. Read Mueller’s full prepared statement for the record here.

Senators on both sides of the aisle expressed concern about how the alleged Christmas Day bomber, Umar Farouk Abdulmutallab, was was able to board a Detroit-bound plane despite red flags that popped up on the Nigerian.

“How did someone who paid for an airline ticket with cash, who boarded without luggage for a winter trip to Detroit, and whose father had come to U.S. officials weeks before to warn that his son had become radicalized, board a flight for the United States with a valid visa?” Judiciary panel Chairman Patrick Leahy (D-Vt.) said at the hearing. Read his full statement for the record here.

Sen. Jeff Sessions (R-Ala.), the ranking Republican on the panel, said the attempted Christmas Day attack showed that the “War On Terrorism” is “still being waged.”

“It’s clear that eight years after 9/11, there are still holes in our counter-terrorism system,” Sessions said. He added: “We need to get this right.” Read Sessions’s full statement for the record here.

Mueller said there have been “some expansions” on the “no-fly list,” which includes the names of individuals with suspected terrorist ties. He said there are “several thousand” people on the list.

The FBI director also cited other improvements that the bureau has made, including the restructuring of the intelligence gathering groups in all of the field offices and the development of a team to help assess and standardize FBI intelligence-gathering programs.

“These changes are part and parcel of our ongoing campaign to ‘know our domain,’ as we say,” Mueller said in his prepared statement. “Domain awareness is a 360-degree understanding of all national security and criminal threats in any given city, community, or region. It is the aggregation of intelligence, to include what we already know and what we need to know, and the development of collection plans to find the best means to answer the unknowns. With this knowledge, we can identify emerging threats, allocate resources effectively, and identify new opportunities for intelligence collection and criminal prosecution.”

Tuesday, January 19th, 2010

Robert Mueller (file photo by Ryan J. Reilly / Main Justice).

The Washington Post is reporting the Federal Bureau of Investigation invoked non-existent terrorism emergencies to illegally collect more than 2,000  U.S. telephone call records between 2002 and 2006, and issued retroactive approvals to justify its actions.

While the improper phone record collection has been known publicly since 2008, the Post obtained internal Bureau emails that shed light on the behind-the-scenes skirmishing over them.

A Justice Department inspector general report slated for release later this month “is expected to conclude” the FBI frequently broke the law by invoking emergencies, the Post said.

FBI director Robert Mueller did not know about the problem until they came to light in an inspector general investigation that began in mid-2006, according to the Post.

“What this turned out to be was a self-inflicted wound,” FBI General Counsel Valerie Caproni told the newspaper. She also acknowledged that the Bureau “technically violated the Electronic Communications Privacy Act when agents invoked nonexistent emergencies to collect records,” the Post reported.

According to the Post, among those who raised concerns internally was FBI Special Agent Bassem Youssef, supervisor of the communications analysis unit that dealt with the records. Youssef brought the matter to the attention of his superiors in 2005, after he received complaints from phone companies about the FBI’s failure to provide documentation showing the searches were legal, the newspaper said.

Youssef earlier had “fallen out of favor with FBI management” because he filed a whistleblower claim alleging he had been denied promotion and retaliated against because of his ethnicity, the Post reported.

The documentation sought by the phone companies were so-called national security letters, which were controversial in their own right because they allowed the FBI to obtain records without obtaining a formal court-approved search warrant.

Read the full Post report here. It was written by former Washington Post reporter John Solomon, who recently resigned as top editor of the Washington Times amid major staff cuts and management turmoil, and Washington Post staff writer Carrie Johnson.

Tuesday, December 1st, 2009

Restoring confidence in the Justice Department remains a major challenge for the Obama administration, according to a report by the agency’s watchdog.

The Office of the Inspector General’s semiannual report, released Tuesday, said the department had taken measures to prevent politicized personnel decisions that plagued the Bush administration, but that the botched prosecution of former Alaska Sen. Ted Stevens “created concern about the prosecutors’ adherence to professional standards of conduct.”

Stevens was prosecuted during the Bush administration, but Attorney General Eric Holder moved to dismiss the indictment in April, after an internal review of the case uncovered instances in which prosecutors improperly withheld material favorable to Stevens’ defense. A court-appointed counsel is investigating whether they did so intentionally. Stevens, the longest-serving Republican senator, was convicted of lying on his Senate disclosure forms and lost his re-election bid in 2008.

“Restoring confidence in Justice Department” was first ranked as a management and performance challenge in 2007, amid investigations into the purge of U.S. Attorneys and other instances of politically tinged personnel decisions. At the time, it ranked as the No. 2 challenge, behind counter-terrorism. In 2008, it fell to No. 5 on the priority list.

The 2009 report released Tuesday hoisted “restoring confidence” to the department’s No. 2 challenge — again, behind counter-terrorism — citing the Stevens case and other allegations of prosecutorial misconduct by federal judges.

“The department needs to ensure that the diligence, hard work, and sound ethics of the overwhelming majority of department employees are not undermined by the few but highly visible incidents of potential misconduct,” the report said. “While the department’s leadership, both at the end of the past administration and during this administration, has taken important steps to confront this challenge, it must remain focused on this critical issue.”

The report noted that the Justice Department has announced a series of reforms in the wake of the Stevens case, including a new training program for prosecutors and a position at Main Justice dedicated to overseeing the efforts.

And while the report was largely complimentary of efforts to depoliticize hiring practices, it said the department had failed to clarify policies on the use of political or ideological affiliations in selecting career attorneys.

Many of the challenges from the 2008 list remain, but the Office of the Inspector General dropped “violent crime” and “cybercrime” from the list and added “Recovery Act funding” and “financial crimes.”

The Obama administration recently unveiled an interagency task force to target financial crimes that played a role in the financial crisis and try to deter future fraud. It replaced the Corporate Fraud Task Force, which President George W. Bush established in 2002 to restore investor confidence following revelations of criminal wrongdoing in America’s boardrooms.

See the full list of challenges from 2008 and 2009 below, and click here for a more detailed look at each of them.

2009 Challenges:

  1. Counterterrorism
  2. Restoring Confidence in the Department of Justice
  3. Recovery Act Funding and Oversight
  4. Civil Rights and Civil Liberties:
  5. Financial Crimes
  6. Sharing of Intelligence and Law Enforcement Information
  7. Grant Management
  8. Detention and Incarceration
  9. Information Technology Systems Planning, Implementation, and Security
  10. Financial Management and Systems

2008 Challenges:

  1. Counterterrorism
  2. Sharing of Intelligence and Law Enforcement Information
  3. Information Technology Systems Planning, Implementation, and Security
  4. Civil Rights and Civil Liberties
  5. Restoring Confidence in the Department of Justice
  6. Violent Crime
  7. Cybercrime
  8. Grant Management
  9. Detention and Incarceration
  10. Financial Management and Systems
Thursday, November 19th, 2009
Edwin Meese III

Edwin Meese III

Former Attorney General Ed Meese on Wednesday joined in the criticism of Attorney General Eric Holder’s controversial decision to try alleged Sept. 11, 2001, terrorism mastermind Khalid Sheikh Mohammed in federal court in New York. Meese served as Attorney General under President Ronald Reagan from 1985 to 1988.

In a blog posting on Web site of the Heritage Foundation, where Meese is the Ronald Reagan Distinguished Fellow in Public Policy and chairman of the Center for Legal and Judicial Studies, he also criticized the decision to “abandon” the Guantanamo Bay detention camp.

Here’s Meese’s full blog posting:

“It is clear that foreign terrorists and terrorist groups have committed acts of war against the United States, and that our national security requires that we respond accordingly. This means that President Bush’s prudent actions and the military response which he led should continue as our answer to these attacks.

Congress overwhelmingly reaffirmed their commitment to military commissions in 2006, which have historically been the way that we respond to acts of war. To abandon our two centuries of tradition and to substitute some new civilian procedure as a response to such attacks endangers the security of our country and our national interest.

It was a tragic mistake to decide to abandon the prison facility at Guantanamo Bay, which was designed physically and legally to handle these types of cases. It is a further tragic mistake to now bring the detained war combatants into the United States and to employ civilian criminal procedures which were never intended for this type of situation.

The U.S. Constitution protects American citizens and visitors from the moment they are suspected of criminal wrongdoing through a potential trial. These same protections are not, have never, and should not be granted to enemy combatants in war, since it is clear that regardless of the outcome of the trial, these detainees will likely remain in the custody of the United States.”

Wednesday, November 18th, 2009
Attorney General Eric Holder used his Senate Judiciary Committee appearance today to push back against conservative critics on national security.
Without naming names, Holder refuted recent comments by former Attorney General Michael Mukasey and Mukasey’s close friend, former New York City Mayor Rudy Giuliani, both of whom have slammed Holder’s controversial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York.
“There are some who have said this decision means that we have reverted to a pre-9/11 mentality, or that we don’t realize this nation is at war,” Holder said in his opening remarks before a Justice Department oversight hearing.
The “pre-9/11 mentality” comment appeared aimed right at Mukasey, who was President George W. Bush’s last Attorney General. On Tuesday Mukasey criticized the Obama administration for dropping use of the Bush-era “war on terror” phrase.
“Using soft, cushy euphemisms instead reflect they’re back in a pre-9-11 mentality,” Mukasey told the Washington Times. “In some ways it’s worse, because at least before [the attacks] we were not aware of what we were facing.”
decision to
refute his predecessor, Michael Mukasey, who has become one of the Obama administration’s most vocal critics on national security.
Holder had spread “misinformation” by arguing a federal trial for al-Qaeda operative Khalid Sheikh Mohammed could help terrorist groups glean valuable intelligence, the Wall Street Journal’s Evan Perez writes.
“I have every confidence the nation and the world will see him for the coward he is. I’m not scared of what KSM will have to say at trial – and no one else needs to be either.
I have every confidence the nation and the world will see him for the coward he is. I’m not scared of what KSM will have to say at trial – and no one else needs to be either.
In remarks during a Justice Department oversight hearing,
During a Senate hearing today on terrorism, Holder dismissed as “misinformation” allegations by Mukasey and other critics that terror groups could gain valuable intelligence from the planned civilian trials for Khalid Sheikh Mohammed and four others four others alleged to have plotted the Sept. 11 terrorist attacks.
Holder expressed confidence that “we can protect information in [civilian] courts in the same way that they can be protected in military commissions.” Mukasey has been critical of Holder’s decision to try the men in civilian courts rather than military tribunals.
During the Senate Judiciary Committee hearing Wednesday, Sen. Orrin Hatch cited a 2007 Wall Street Journal opinion article by Mukasey that stated, “during the trial of Ramzi Yousef, the mastermind of the 1993 World Trade Center bombing, an apparently innocuous bit of testimony in a public courtroom about delivery of a cell phone battery was enough to tip off terrorists still at large that one of their communication links had been compromised. That link, which in fact had been monitored by the government and had provided enormously valuable intelligence, was immediately shut down, and further information lost.”
Hatch also cited an assertion by Mukasey, that Osama bin Laden obtained a list of unindicted co-conspirators that included bin Laden himself, just days after prosecutors had introduced such evidence in the 1995 trial of Abdel Rahman and others in plotting to bomb U.S. targets.
Holder didn’t dispute that bin Ladin may have received the information within days, but said that the “co-conspirator list was not a classified document.  Had there been a reason to try to protect it, prosecutors could have sought a protective order.”
The attorney general laid out a timeline of what is known about bin Ladin’s cell phone use to dispute the charge that the al Qaeda leader gained intelligence from a criminal trial thousands of miles away.
The phone records were used in trials related to the 1998 U.S. embassy bombings in Africa. Holder said bin Ladin last used his cell phone Oct. 9, 1998. The government began producing evidence in the case Dec. 17, 1998. The phone records were disclosed in court more than two years later, March 20, 2001.
“So with regard to those allegations and those contentions, there’s a factual problem,” Holder said in one of several combative exchanges during the hearing. “There are factual inaccuracies that underlie those contentions.”

Attorney General Eric Holder used his Senate Judiciary Committee appearance today to push back against conservative critics on national security.

Without naming names, Holder refuted recent comments by former Attorney General Michael Mukasey and Mukasey’s close friend, former New York City Mayor Rudy Giuliani, both of whom have slammed Holder’s controversial decision to try alleged 9/11 mastermind Khalid Sheikh Mohammed in federal court in New York.

“There are some who have said this decision means that we have reverted to a pre-9/11 mentality, or that we don’t realize this nation is at war,” Holder said in his opening remarks before a Justice Department oversight hearing. “I know that we are at war.”holder mukasey giuliani

The “pre-9/11 mentality” comment appeared aimed right at Mukasey, who was President George W. Bush’s last Attorney General, and who served as an Assistant U.S. Attorney in the Southern District of New York in the mid 1970s with Giuliani.

Mukasey had earlier criticized the Obama administration for dropping use of the Bush-era “war on terror” phrase.

“Using soft, cushy euphemisms instead reflect they’re back in a pre-9-11 mentality,” Mukasey told the Washington Times. “In some ways it’s worse, because at least before [the attacks] we were not aware of what we were facing.”

And Giuliani said Wednesday that if Holder “truly believes we are at war,” he will reverse the decision to try KSM in civilian court and instead let the military try him. “It sends a signal to the terrorists that we are not taking this seriously, as we did before,” the 2008 Republican presidential candidate told reporters on a conference call arranged by the Republican National Committee.

Giuliani became famous for his leadership of New York through the Sept. 11, 2001 attacks that brought down the World Trade Center. He became mayor in 1994, a year after followers of an Islamist leader with ties to Osama Bin Laden, the “blind sheikh” Omar Abdel Rahman, had first tried to bring down the towers, using explosives.

NBC’s First Read political newsletter points out a perceived inconsistency in Giuliani’s statements over time. In 1994, the New York mayor praised a guilty verdict in the first WTC bombing trial as demonstrating that “New Yorkers won’t meet violence with violence, but with a far greater weapon — the law.”

For his part Mukasey has been on an op-ed spree in recent weeks, publishing arguments in favor of military commissions in the Wall Street Journal and The Washington Post.

Holder on Wednesday said his critics who said courts can’t handle terrorism cases and that classified information wouldn’t be protected are spreading “misinformation.”

“Our courts have a long history of handling these cases, and no district has a longer history than the Southern District of New York in Manhattan,” Holder said. Among the high profile terrorism trials in New York was the 1994-95 trial of Abdel Rahman, who was convicted of plotting to blow up the United Nations and other New York City landmarks. Mukasey, then a federal judge, presided over the trial.

At Wednesday’s hearing, Sen. Orrin Hatch (R-Utah) cited Mukasey’s previous statements that he believed the Abdel Rahman trial had been bad for national security. The trial produced a public list of  unindicted co-conspirators — including bin Laden — that may have tipped off the al-Qaeda leader he was wanted by the U.S. government, Mukasey has said.

Holder parried that prosecutors would have sought to keep the unindicted co-conspirator list classified and secret, if it had really compromised national security.

But one of the most interesting exchanges Wednesday came with a Democrat on the Senate panel. Sen. Herb Kohl (D-Wis) asked Holder what he planned to do if a jury failed to convict KSM. ”Failure is not an option,” Holder said, adding that he’d spoken already to the prosecutors about it. “These are cases that have to be won. I don’t expect that we will have a contrary result.”

Replied Kohl: “Well, that’s an interesting point of view. Um, I’ll just leave it at that.”

Wednesday, November 18th, 2009

Former Attorney General Michael B. Mukasey on Tuesday during a radio interview with The Washington Times joked that Rep. James Moran (D-Va.) “ought to get professional help, perhaps from Maj. Nidal [Hasan],” the accused Fort Hood shooter, The Huffington Post reports.

Last week, Moran criticized opponents of Attorney General Eric Holder’s decision to try Khalid Sheikh Mohammed and his Sept. 11, 2001, co-defendants in the Southern District of New York, Talking Points Memo reported. “They see this as an opportunity to demagogue,” Moran told TPM. “They will seize on any opportunity to do that, and that means they’ll even take a stand that’s un-American.” He added, “It’s un-American to hold anyone indefinitely without trial. It’s against our principles as a nation.”

During his interview, Mukasay was asked to respond to Moran’s comments. “I think he’s lost touch with reality. He ought to get professional help, perhaps from Maj. Nidal.” Last week, Mukasey slammedthe decision to try Mohammed in New York City.

Friday, November 13th, 2009

Michael_Mukasey,_official_AG_photo_portrait,_2007Former Attorney General Michael B. Mukasey on Friday criticized the Obama administration’s decision to prosecute a group of terrorism suspects accused in the Sept. 11, 2001, attacks in federal court, warning of safety risks to Americans and the possibility that national security information could be aired in civilian proceedings.

His speech to the conservative Federalist Society — of which he is a member — came hours after Attorney General Eric Holder announced that Khalid Sheikh Mohammed, the self-proclaimed “mastermind” of the attacks, and four other men accused in the plot would face charges in the Southern District of New York.

Mukasey, echoing concerns he outlined in a recent piece in The Wall Street Journal, said granting the suspects access to civilian courts would present a “cornucopia [of intelligence] for those still at large and a circus for those in custody.”

Mukasey, who supports trying terrorism suspects in military commissions at Guantanamo, said KSM will be “a virtually totemic figure” in prison, potentially radicalizing others. Mukasey said he wasn’t worried about the suspects breaking free but feared holding them in New York would make the city a renewed target for attack.

The question is whether the city will become the focus of new “mischief in the form of murder,” said Mukasey, who presided over the 1995 trial in New York of the “blind sheik” Omar Abdel Rahman, who was implicated in the 1993 World Trade Center bombing and convicted for plotting to blow up New York City landmarks.

At a news conference Friday, Holder said the Justice Department “has a long, successful history of prosecuting terrorists for their crimes against our nation, particularly in New York.”

He went on:

Although these cases can often be complex and challenging, federal prosecutors have successfully met these challenges and have convicted a number of terrorists who are now serving lengthy sentences in our prisons. And although the security issues presented by terrorism cases should never be minimized, our marshals, court security officers, and prison officials have extensive experience and training dealing with dangerous defendants, and I am confident they can meet the security challenges posed by this case.

Mukasey spent much of his speech lashing out at the Obama administration for reversing national securtiy policies under President George W. Bush, but he credited his successor for leaving intact intelligence-gathering methods used by the FBI and for continuing to deploy the controversial state stecrets privilege.

Mukasey, Bush’s third Attorney General, was introduced by Gerald Walpin,  the former inspector general for the Corporation for National and Community Service.

President Barack Obama fired Walpin this summer, amid a federal probe into whether he overstepped his authority while investigating a Sacramento-based non-profit foundation. Walpin was recently cleared of wrongdoing, and has asked to be reinstated. His firing has become a rallying cry for conservatives who accuse the Obama administration of removing Walpin for political reasons.

Mukasey said Walpin was “unceremoniously” and “unlawfully” removed.

Click here for a video of the panel on C-SPAN.

This post has been updated.