As Congress debates proposals to deny funding for civilian trials of the accused terrorists behind the Sept. 11 attacks, Attorney General Eric Holder and Secretary of Defense Robert Gates have written a letter to House Speaker Nancy Pelosi (D-Calif.) and House Minority Leader John Boehner (R-Ohio) saying that selecting the venue for the prosecution of terror suspects is a function of the executive branch.

“The exercise of prosecutorial discretion has always been and should remain an Executive branch function,” write Gates and Holder. “We believe it would be unwise and would set a dangerous precedent for Congress to restrict the discretion of our Departments to carry out specific terrorism prosecutions.”

“Indeed, we have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes,” write Holder and Gates.

The letter was reported by Adam Serwer of The American Prospect and is embedded below.

Gates-Holder Letter 022510

Attorney General Eric Holder went on the offensive on Monday, using a terrorist’s guilty plea in a New York court to buttress plans to conduct the trials of the 9/11 plotters in civilian courts rather than the military commission system. But congressional Republicans Tuesday were not ready to concede the A.G.’s point of view.

Holder said Monday the criminal justice system is “a valuable tool in our fight against terrorism,” when he announced that Najibullah Zazi had pleaded guilty to plotting to bomb New York’s subway.

However, Republicans continued their opposition to using civilian courts for terrorism suspects, including self-described 9/11 mastermind Khalid Sheikh Mohammed and four of his alleged co-conspirators.

“The Attorney General claims that the plea of Zazi is proof that federal courts can handle the trials of terrorists currently held at Guantánamo Bay,” Texas Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee, said in a statement today. “But comparing the prosecution of Zazi — a legal permanent resident of the U.S. — to Khalid Sheikh Mohammed — who engaged in an act of war against the U.S. by plotting the mass murder of Americans on 9/11 — is misleading at best.”

House Minority Leader John Boehner (R-Ohio) dismissed Holder’s latest remarks on the benefits of using the criminal justice system for terrorism suspects.

“I think that terrorists ought to be treated like terrorists, not like common criminals,â€� Boehner told reporters today, according to The Hill.

Several Republicans and conservative Democrats have signed onto legislation introduced earlier this month in both the Senate and House that would prohibit the Justice Department from using appropriated funds to prosecute KSM and his alleged accomplices in federal court.

The growing pressure from both sides of the aisle has forced Holder to back down on his desire to try the alleged 9/11 plotters in a Manhattan federal court. The Attorney General said earlier this month that the five terrorism suspects might be tried by a military commission. But the Obama administration hasn’t reached a final decision.

Key Democrats, including Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.), continue to stand behind Holder’s handling of terrorism cases.

“[Zazi’s] guilty plea is just the latest example of justice being served by using our counterterrorism tools and the experience of our criminal justice system,” Leahy said, according to The Hill.

The top ranking Republican of the House Judiciary Committee introduced legislation today that would compel the Justice Department to confer with the Director of National Intelligence and the secretary of Defense before deciding if a suspected terrorist should be tried treated as a civilian.

Lamar Smith (gov)

Rep. Lamar Smith (R-Texas) criticized the Obama administration’s decision to allow FBI agents to interrogate Umar Farouk Abdulmutallab and read the Nigerian his Miranda rights when he was captured after he allegedly tried to ignite explosives in his underpants on a Dec. 25 Detroit-bound airplane flight.

“Giving terrorists constitutional rights ignores the seriousness of the threat from al-Qaeda — these are acts of war, not isolated incidents of crime,” Smith said in a statement. “All terrorists should be interrogated by intelligence experts to obtain crucial information about future attacks. Anything less risks the safety and security of the American people.â€�

DOJ spokesman Matthew Miller defended the decisions, saying in a statement last week that the DOJ consulted national security officials before Abdulmutallab was charged in federal court. But it is still unclear exactly when in the decision-making process the DOJ consulted the nationaly security officials on Abdulmutallab.

Yesterday, Senate Homeland Security and Governmental Affairs Committee Chairman Joe Lieberman (I-Conn.) and the panel’s ranking Republican, Susan Collins of Maine, asked Attorney General Eric Holder to remove Abdulmutallab from federal custody to military detention.

Smith’s bill is co-sponsored by 17 Republicans: John Boehner, Ohio; John Carter, Texas; Buck McKeon, California; Peter King, New York; Ileana Ros-Lehtinen, Florida; Jim Sensenbrenner, Wisconsin; Howard Coble, North Carolina; Elton Gallegly, California; Daniel Lungren, California; Trent Franks, Arizona; Louie Gohmert, Texas; Jim Jordan, Ohio; Jason Chaffetz, Utah; Tom Rooney, Florida; Roy Blunt ,Missouri; Hal Rogers, Kentucky; and Don Manzullo, Illinois.

Congressional Republicans  expressed their displeasure with President Obama’s speech on Guantanamo Bay through a series of statements and press conferences this afternoon.

In his speech at the National Archives, Obama defended his decision to close the Guantanamo Bay military prison, but provided few firm details on what his administration would do with the 240 detainees imprisoned there. But he did say some prisoners would be transferred to the United States.

And before Obama even left the home of the Constitution, Republicans were on the attack.

Minority Whip Rep. Eric Cantor (R- Va.) released a statement immediately after the speech saying that a majority of Americans do not support the transfer of Guantanamo detainees to the United States.

“The American people expect the United States to keep terrorists where they belong – apart from civilized society and outside of America’s borders,” Cantor said in the statement. He added: Importing terrorists into our communities creates a situation where people in surrounding areas are put at greater risk.”

Then came the press conferences.

House Minority Leader Rep. John Boehner (R-Ohio) said Obama’s decision to shutter the military brig was “irresponsible,” CBS News reported.

“Let me state, right up front that Republicans oppose releasing these terrorists or detaining them in our local communities,” Boehner said, according to CBS News. “I think on this one he is dead wrong.”

Minority Leader Sen. Mitch McConnell (R-Ky.) said in his press conference that Americans don’t need “a speech but a plan,” CBS News reported.

“With all due respect to the president, what we need is not a speech but a plan,� McConnell said, according to CBS News. “The plan is what was clearly missing from the speech today. What is driving this issue, in my view, is a quest for popularity in Europe more than continuing policies that have demonstrably made America safe since 9/11. Clearly these policies and practices worked.�

In statements from the other side of the aisle, Democrats expressed their support of Obama’s handling of Guantanamo Bay.

“The President today reiterated the belief we both share that closing Guantanamo will make America more secure,” Majority Leader Sen. Harry Reid (D-Nev.) said in a statement, but did not address his opposition to the transfer of detainees to the United States.

While House Speaker Rep. Nancy Pelosi (D-Calif.) was away, The House tried to dismay.

The House voted 252-172 to block a resolution sponsored by Rep. Rob Bishop (R-Utah), which would establish a bipartisan panel to investigate whether the CIA misled Pelosi in 2002 about the use of waterboarding on suspected terrorists, The Associated Press reported this afternoon. The House speaker was giving a commencement speech at Johns Hopkins University at the time of the vote, The AP said.

“This is partisan politics and an attempt by the Republicans to distract from the real issue of creating jobs and making progress on health care, energy and education,” said Pelosi spokesman Nadeam Elshami told The AP.

House Minority Leader John Boehner (R-Ohio) told The AP that Pelosi’s claims can’t be brushed aside.

“To have this charge out there and not have it resolved I think is damaging to our intelligence efforts, and certainly will have a chilling effect on our intelligence professionals around the world,” Boehner told The AP.

It’s been a tough day for the Obama administration on the emotional issue of closing Guantanamo Bay.

The Senate voted to strip funds for President Obama’s promise to close the Cuba-based detention facility. FBI Director Robert Mueller equivocated about the wisdom of putting Gitmo detainees in U.S. prisons before a House Judiciary hearing. And Attorney General Eric Holder expressed his serene confidence in a news conference today that the “necessary funds will come our way” to keep Obama’s promise to shutter the facility by Jan. 22, 2010.

Amid the uncertainty about closing the facility, we decided to tally the number of lawmakers who’ve gone so far as to introduce Not In My Back Yard (NIMBY) legislation to bar the resettlement of detainees in their states or districts.

The result? Twenty-three lawmakers — all Republicans — have filed such legislation. Most of the bills would bar detainee resettlement or public assistance. None has attracted more than 18 co-sponsors.  Take a look:

Lynn Jenkins

• Rep. Lynn Jenkins (R-Kan.), 18 co-sponsors
• Rep. Henry E. Brown Jr. (R-S.C.), 2 co-sponsors
• Rep. Duncan D. Hunter (R-Calif.), 3 co-sponsors
• Rep. Mary Fallin (R-Okla.), 4 co-sponsors
• Rep. Doug Lamborn (R-Colo.), 0 co-sponsors
• Rep. Phil Gingrey (R-Ga.), 6 co-sponsors
• Rep. Sue Wilkins Myrick (R-N.C.) 0 co-sponsors
• Rep. Trent Franks (R-Ariz.), 0 co-sponsors
• Rep. Tom Cole (R-Okla.), 25 co-sponsors *
• Rep. Jeff Miller (R-Fla.), 8 co-sponsors *
• Rep. Ken Calvert (R-Calif.), 11 co-sponsors *
• Rep. Thomas J. Rooney (R-Fla.), 9 co-sponsors
• Rep. J. Randy Forbes (R-Va.), 7 co-sponsors
• Rep. John B. Shadegg (R-Ariz.), 29 c0-sponsors *
  

  Saxby Chambliss

• Rep. John Kline (R-Minn.), 2 c0-sponsors
• Rep. John A. Boehner (R-Ohio), 138 co-sponsors *
• Rep. Steve Austria (R-Ohio), 4 co-sponsors
• Rep. Todd Tiahrt (R-Kan.), 9 co-sponsors
• Rep. Mark E. Souder (R-Ind.), 8 co-sponsors *
• Sen. David Vitter (R-La.), 0 co-sponsors *
• Sen. Sam Brownback (R-Kan.), 2 co-sponsors *
• Sen. James M. Inhofe (R-Ohio), 6 co-sponsors *
• Sen. Saxby Chambliss (R-Ga.), 5 co-sponsors *

* denotes a bill that applies to the entire United States, as opposed to a state or district

Rep. Randy Forbes

Rep. J. Randy Forbes (R-Va.) was so concerned that he proposed two bills to stop detainees from entering Virginia.  It’s worth noting that his fellow Rep. James Moran (D-Va.) is the only member of Congress on record to say that he would accept detainees from Guantanamo Bay in the district that he represents.   On the other hand, Moran’s position has caused trouble for his brother Brian Moran, who is running for the Democratic nomination for governor of Virginia.  But in Oklahoma, House members have been united, all signing onto H.R.701 to prohibit transfer of detainees to Oklahoma, this includes Democrat Rep. Dan Boren.

House Minority Leader John Boehner (R-Ohio) had an interesting proposal, rather than going all out and prohibiting detainees from entering the United States, he wanted to put the decision in the hands of each state’s governor and legislature:

21. H.R.2294 : To require the approval of the relevant State governor and legislature and the President’s notification and certification before the transfer or release of an individual currently detained at Guantanamo Bay, Cuba, to a location in the United States, and for other purposes.

Sen. David Vitter (R-La.) took another interesting approach, making the entry of a Guantanamo Bay detainee into the United States contingent on President Obama’s determination that such entry “is consistent with the national security of the United States.”  Vitter named his bill the “Protection from Enemy Combatants Act.”  Elegant.

David Vitter

One concern among Republicans is regarding Director of National Intelligence Dennis Blair’s remark that detainees from Guantanamo may need some assistance to start their new lives in the United States. Like what? Welfare, food stamps, Medicaid? Enter Rep. Todd Tiahrt’s (R-Kan.) proposal:

23. H.R.2338 : To prohibit any alien formerly detained at the Department of Defense detention facility at Naval Station, Guantanamo Bay, Cuba, and brought into the United States from receiving any Federal, State, or local public benefit.

Rep. Howard Cole (R-N.C.) expressed his concern about the issue when Attorney General Eric Holder appeared before the House Judiciary Committee last Thursday, to which Holder responded that “no final decision has been made as to what will happen to the detainees.”

And finally for the “most random bill”…  Rep. Jeff Miller (R-Fla.) proposed a bill:

13. H.R.1042 : To prohibit the provision of medical treatment to enemy combatants detained by the United States at Naval Station, Guantanamo Bay, Cuba, in the same facility as a member of the Armed Forces or Department of Veterans Affairs medical facility.

For Stephen Colbert’s take on NIMBYism, and to see some of the more entertaining remarks made by members of Congress on this issue, watch the clip below:

In her news-making press conference yesterday, Speaker of the House Nancy Pelosi (D-CA) laid out a timeline of what she knew and when she knew it.  According to Pelosi, the one CIA briefing that she did receive in September 2002 specifically noted that waterboarding was not being used.  Pelosi said that CIA reports indicating otherwise were untrue, and that she had been lied to in 2002.

REPORTER: So Madame Speaker, just to be clear, you’re accusing the CIA of lying to you in September of 2002?

PELOSI: Yes. Misleading the Congress of the United States.

Pelosi said that she wants the CIA to release detailed reports on her September 2002 briefing so that she can be vindicated.  Dick Cheney is also requesting documents that apparently prove his truthfulness.  In order to bolster her accusation that the CIA lied to her about waterboarding, Pelosi connected the CIA to Iraq:

at exactly the same time [as the September CIA briefing] the Bush adminstration was misleading the American people about the threat of weapons of mass destruction in Iraq.

She did admit, however, that in February 2003, she was told by an aide that top members of the House Intelligence Committee had been briefed on interrogation methods being used, including waterboarding.  Technically, she couldn’t really do anything about it.  So, the ranking Democratic member on the Intelligence Committee Rep. Jane Harman (D-CA) ended up sending a letter to the CIA general counsel Scott Muller questioning the interrogation methods.  ”That is the proper person to send the letter,” Pelosi said at the press conference. “My job (as minority leader) was to change the majority in Congress.”

In defending her good friend Pelosi, Sen. Dianne Feinstein (D-CA) said: “The CIA on this issue is in a defensive mode. Who knows whether what they’re saying is right or wrong? The CIA is not an agency that is above not telling the truth”

Another interesting quote from Pelosi that may offer a glimpse into the future:

Congress and the Administration must review the National Security Act of 1947 to determine if a larger number of Members of Congress should receive classified briefings so that information can be utilized for proper oversight and legislative activity without violating oaths of secrecy.

Shortly after Pelosi’s presser, John Boehner (R-OH) gave a response:

It’s hard for me to imagine that anyone in our intelligence area would ever mislead a member of Congress. They come to the Hill to brief us because they’re required to under the law, and I don’t know what motivation they would have to mislead anyone. And I don’t believe, and don’t feel, that in the briefings I’ve had that I’ve been mislead at any one point in time.

UPDATE: CIA Director Leon Panetta says Pelosi was told the truth.