A sense of complacency about potential terrorist attacks involving weapons of mass destruction has developed in the federal government following the Sept. 11 attacks, Justice Department Inspector General Glenn A. Fine told members of Congress Wednesday.
An Inspector General’s report issued last month found that most DOJ agencies were unprepared to respond to a WMD attack and only the Federal Bureau of Investigation has taken appropriate steps to prepare for a potential attack. The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) had been in charge of coordinating the department’s response, but many other parts of DOJ were not even aware that ATF was supposed to lead the effort.
“Our report identified significant deficiencies in the department’s preparations to respond to a WMD attack,” Fine told members of the Senate Judiciary Committee Wednesday. “These deficiencies could have disastrous consequences because the use of a weapon of mass destruction poses a serious potential threat to the United States.”
Sen. Benjamin Cardin (D- Md.), who chaired the hearing, called the findings for the Inspector General’s report disturbing.
“We know that terrorists are training every day to launch another attack in the United States, and [the] first line of defense must be to disrupt and prevent a successful terrorist attack,” Cardin said. “But we also have to make sure we are ready and prepared [for] a terrorist attack at home, whether it is from a chemical, biological, radiological or nuclear weapon.”
Cardin said he was concerned that the ATF — the lead agency on DOJ’s WMD response — had made so little progress in preparing for an attack. The hearing came the same day at a new name emerged as a possible candidate to take over ATF.
“There’s a lot of things going on in the Department of Justice,” said Cardin. “But I really want to focus in on how we’re going to implement this.”
Jon Kyl (R-Ariz.) — the only other senator to attend the hearing — said the depth of the department’s commitment to the issue was “highly questionable.”
Fine said he believes the Justice Department is taking the report’s findings seriously and taking steps to remedy the deficiencies.
Associate Deputy Attorney General James A. Baker, who also testified Wednesday, called Fine “dogged”and said he expects the Inspector General’s office will hold DOJ’s feet to the fire.
Baker said Acting Deputy Attorney General Gary Grindler and others in DOJ leadership were not happy to read the results of the report and had prioritized the issue.
“The Acting Deputy Attorney General has been clear: The crush of other business is no excuse. The Department must review and resolve the issues identified by the Inspector General,” Baker testified.
Grindler established the Emergency Preparedness Committee, which Baker chairs. That committee, said Baker, has been meeting all summer and will issue a final report by Oct. 10.
Attorney General Eric Holder said shortly after the report was issued that the Justice Department would deal with the issue “very quickly.”
Responsibility for the government’s WMD response is dispersed among too many agencies, said Randall J. Larsen, chief executive officer of the WMD Center, a non-profit research organization he founded with former Sens. Bob Graham (D-Fl.) and Jim Talent (R-Mo.).
He noted that more than two dozen officials had a piece of the WMD puzzle. Larsen suggested that the Vice President should be designated as the point person for coordinating the government’s response.
“There’s no head coach,” Larsen said. “Nobody is in charge.”
Jon Kyl (R-Ariz.) Statement on Supreme Court nominee Elena Kagan
“One year ago, we sat in this same room to consider the nomination of then-Judge Sonia Sotomayor. Although I could not ultimately support her nomination, I was pleased that she testified that the role of a judge is to put aside any biases or prejudices and impartially apply the law to resolve disputes between parties.
“Judge Sotomayor explicitly rejected the ‘empathy’ standard espoused by President Obama – a standard where ‘legal process alone’ is deemed insufficient to decide the so-called ‘hard cases’; a standard where the ‘critical ingredient is supplied by what is in the judge’s heart.’
“Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have ‘a keen understanding of how the law affects the daily lives of the American people. . . . [and] know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.’
“The clear implication is that, at least in some kind of cases, judges should abandon impartiality and instead engage in results-oriented judging. Indeed, his own press secretary has confirmed the president’s ‘results-oriented’ view.
“Exactly what kind of ‘results’ is the President looking for from his judges? Perhaps he wants judges who will ignore the serious constitutional questions surrounding his domestic legislation. Or, maybe he wants judges who will use the bench to advance ‘progressive’ goals that have been stalled in the political process.
“Whatever the President’s motivation, his view of the role of judges is wrong. Judges are to apply the law impartially, not take on social causes or cut down ‘powerful interests.’ While they may disagree with legislative solutions to problems, it is not their prerogative to ‘fix’ inequities.
“Part of our task is to determine whether Ms. Kagan shares President Obama’s results-oriented philosophy of judging, or, instead is committed to impartiality.
“This may be a more difficult task with Ms. Kagan than with other Supreme Court nominees who have come before this Committee, most of whom have had substantial judicial records to evaluate. For instance, Judge Sotomayor issued 15,000 opinions, in a decade and a half of district and circuit court service. Ms. Kagan has never served on any bench.
“Indeed, except for a brief two-year stint in private practice and one year as Solicitor General, Ms. Kagan’s entire career has been divided between academia and policy positions in the Clinton administration. Given this lack of experience practicing law, I was surprised that the American Bar Association awarded her a ‘well qualified’ rating – especially since the ABA’s own criteria for a judicial nominee call for, among other things, ‘at least twelve years’ experience in the practice of law.’
“Not only is Ms. Kagan’s background unusual for a Supreme Court nominee, it is not clear how it demonstrates that she has, in the President’s words, ‘a keen understanding of how the law affects the daily lives of the American people.’ One recent article noted that ‘[Ms.] Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.’
“Her career in academia tells us relatively little about her views on legal issues. In 14 years as a professor, she published only nine articles, two of which were book reviews. And her tenure in the academy was marred, in my view, by her decision to punish the military, and would be recruits, for a policy – ‘don’t’ ask, don’t tell’ and the Solomon amendment – that was enacted by members of Congress and signed into law by President Clinton.
“Despite this relatively thin ‘paper-trail,’ there are warning signs that she may be exactly the results-oriented justice President Obama is looking for. Consider, for example, the judges that Ms. Kagan says she most admires.
“Ms. Kagan has called Israeli Supreme Court Justice Aharon Barak her ‘judicial hero.’ Justice Barak is widely acknowledged as someone ‘who took an activist approach to judging.’
“One respected judge, Richard Posner, described Barak’s tenure on the Israeli Supreme Court as ‘creat[ing] . . . a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.’
“Ms. Kagan identified Thurgood Marshall as another of her legal ‘heroes.’ Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall’s judicial philosophy, however, was not what I would consider mainstream. As he once explained: ‘You do what you think is right and let the law catch up.’ He might be the epitome of a results-oriented judge.
“And, again, Ms. Kagan appears to enthusiastically embrace Justice Marshall’s judicial philosophy, calling it ‘a thing of glory.’ In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, in his view, ‘It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government – to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.’ And later, when she was working in the Clinton Administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his ‘unshakable determination to protect the underdog – the people whom no one else will protect.’ This sounds a lot like what President Obama is saying now.
“And Ms. Kagan’s work as a Supreme Court clerk for Justice Marshall contains evidence that she shares his vision of the Constitution. In many of her memos to Justice Marshall, Ms. Kagan made recommendations concerning the disposition of cases, which appear to be based largely on her own liberal policy preferences.
“For example, despite her view that one lower court decision was ‘ludicrous’ and lacked a legal basis, Ms. Kagan nonetheless recommended that Justice Marshall vote to deny further review because, to do otherwise, Ms. Kagan wrote, would likely ‘create some very bad law on abortion and/or prisoners’ rights.’ This kind of naked political judgment appears frequently throughout Ms. Kagan’s work as a judicial clerk.
“In another case, Ms. Kagan said that the Supreme Court should take the case because ‘it’s even possible that the good guys might win on this issue.’ I’m concerned about her characterization of one party as the ‘good guys.’ Too often, it sounds to me like Ms. Kagan shares the view of President Obama and Justice Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants.
“Similarly, Ms. Kagan wrote that ‘there is no good reason to place an exclusionary-rule issue before this Court, which will doubtlessly only do something horrible with it.’
“In yet another memo laced with political considerations, Ms. Kagan wrote, ‘I see no reason to let this Court get a crack at this question.’ Ms. Kagan was even more explicit in a handwritten note after reviewing the Government’s response in another case: ‘I continue to believe that they [the facts] did not [support the arrest], but I cannot see anything good coming out of review of this case by this Court.’
“Ms. Kagan explains these recommendations as merely ‘channeling’ Justice Marshall. But the question is whether she has major differences with him and whether she sees anything wrong with taking the same approach. I have seen no evidence that is the case.
“In addition to my general concern about whether Ms. Kagan could decide cases impartially and without bias for or against certain parties, a surprising number of things in her relatively thin body of work raise substantive concerns about her views on federalism issues, free speech, national security, Second Amendment rights, gay marriage, the death penalty, religion, and abortion.
“To take just one example, I’m deeply troubled by her decision as Solicitor General to urge the Supreme Court to review and strike down an Arizona law designed to prevent employers from hiring illegal aliens. The Ninth Circuit unanimously upheld the law because federal immigration law explicitly allows states to sanction employers through their business licensing regimes. I think there are legitimate questions about whether the brief authorized by Ms. Kagan – which flies in the face of the plain language of the law and urges the Supreme Court to strike these enforcement provisions down—was motivated by political influence at the White House and within the Department of Justice.
“In conclusion, there is ample reason for members of this committee to carefully scrutinize this nominee – scrutiny which she invited in her now famous Chicago Law Review article 1995.
Because she has no judicial record on which we can determine whether she is a ‘results-oriented’ nominee or would approach each case as a neutral arbiter, the burden is on the nominee to show that her record demonstrates that she can be a fair and impartial justice rather than one who would have an outcome-based approach.”
Two Republican senators who voted to confirm Elena Kagan as Solicitor General last year say they won’t automatically support her for the Supreme Court. Meanwhile, party-switching Pennsylvania Sen. Arlen Specter (D) now says he’s open to Kagan’s nomination after voting against her for Solicitor General when he was a Republican.
Seven Republican senators joined the 61 to 31 majority that voted in March 2009 to confirm Kagan for Solicitor General. The GOP senators included Judiciary Committee members Jon Kyl of Arizona, Orrin Hatch of Utah, and Tom Coburn of Oklahoma. Other Republicans casting “yea” votes were Susan Collins and Olympia Snowe of Maine, Judd Gregg of New Hampshire and Richard Lugar of Indiana.
“As I made clear when I supported her confirmation as Solicitor General, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” Kyl said in a statement Monday.
Hatch added in another statement Monday: “Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her. I have an open mind and look forward to actively participating in the confirmation process.”
Before he became a Democrat in April 2009, Specter said he was unable to learn enough about Kagan during the discussions he had with her to support her for Solicitor General.
On Monday, he defended his vote against Kagan for the Solicitor General spot but, as Hatch did, said he would keep an open mind on Kagan’s Supreme Court nomination. Specter called her “a pioneer for women.” Here’s his statement:
“There is no doubt that Elena Kagan has exemplary academic and professional credentials. And she has been a pioneer for women, serving as the country’s first female Solicitor General and as the first woman to be Dean of Harvard Law School. I applaud the President for nominating someone who has a varied and diverse background outside the circuit court of appeals.
“I voted against her for Solicitor General because she wouldn’t answer basic questions about her standards for handling that job. It is a distinctly different position than that of a Supreme Court Justice.
“I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman’s right to choose, voting rights and congressional power.”
Sen. Jon Kyl (R-Ariz.) told Main Justice Thursday he was trying to “send a little message” by voting to confirm Christopher Schroeder as the chief of the Justice Department’s Office of Legal Policy.
“Sometimes you’re trying to send a protest message with votes,” Kyl said. “But at the end of the day, I’m willing for him to be confirmed. I’m willing to work with him. Under those circumstances, sometimes you say, ‘OK, I’ll hope that maybe this gesture will make it a little easier for us to work together.’”
Kyl was one of 72 senators to vote in favor of Schroeder’s nomination on Wednesday. The Arizona Republican — who also serves as the minority whip, the second-ranking Republican in the Senate — initially voted against the nomination in the Judiciary Committee in February.
Kyl joined Republican Sens. John Cornyn of Texas and Tom Coburn of Oklahoma to vote against Schroeder in a 16-3 vote. Though Cornyn and Coburn stuck with their no-votes Wednesday, Kyl switched to a yes. The Senate confirmed the OLP chief, 72-24.
In February, Kyl had expressed concern that Schroeder’s job entails participating in the vetting of prospective judicial nominees. Schroeder had been a critic of President George W. Bush’s national security policies. Schroeder will play a leading role in readying the replacement for retiring Supreme Court Justice John Paul Stevens.
On Thursday, Kyl said he still thinks Schroeder said “some unfortunate things in the past” and is “very liberal.” But he said votes such as the one on the Schroeder confirmation aren’t “going to make a huge difference.”
In a letter to two Republican senators Friday, Attorney General Eric Holder apologized for not listing several friend-of-the-court briefs on the Senate Judiciary Committee questionnaire during his confirmation process last year. But Holder maintained his current position on executive power is consistent with what he expressed in the briefs.
A National Review column published earlier this month blasted Holder for not disclosing on his questionnaire two Supreme Court amicus briefs in the high-profile terrorism case of Jose Padilla that he had joined in signing. In one of the briefs, Holder and several former DOJ officials from the Clinton administration argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.
Republicans pounced on the omission and several days later, the DOJ turned over to the Senate half a dozen Supreme Court briefs Holder neglected to disclose.
In a letter Friday addressed to Senate Judiciary Committee Republicans Jeff Sessions of Alabama and Jon Kyl of Arizona, Holder wrote that the omision occurred because his initial reviewers relied on his law office files, which were incomplete. Later during the confirmation process, a second set of reviewers found the Padilla briefs but left them out because they “understood that question to call for briefs on which I had been the lawyer, not the client,” Holder wrote.
“Although it does not excuse my failure to list these briefs, I note that they have always been included in widely available legal databases, and have never been hidden from public view at all,” he added. “The bottom line, of course, is that I should have included these documents in my submission to the Committee. I am aware of no other inaccuracies in my questionnaire, and none has been brought to my attention.”
Last Friday, Sessions and Kyl sent a letter to Holder concerning the briefs and said they planned to question him at a panel oversight hearing on “the apparent contradictions” between his current views on terrorist detention and what he previously expressed in the briefs. That hearing was later postponed and rescheduled for April.
“Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators,” the senators wrote in the letter last week. “Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.”
In the response Friday, Holder said the amicus brief was fully consistent with his current view that the “criminal justice system remains a powerful weapon in our arsenal.”
“To be sure, the brief acknowledges the fact that, in light of legal constraints, there might be ’some hypothetical situation’ in which it may not be possible to use our numerous law enforcement tools to arrest and extract information from a U.S. citizen who we suspect is linked to terrorist activity,” Holder wrote. “This merely states the obvious fact that there may be limitations upon the ability of the executive branch to restrict the liberty of U.S. citizens, at least absent further authorization from Congress.”
He continued, “as noted in that brief, Congress has provided the president with comprehensive and extraordinary powers to fight terrorism without making claims that strain the Constitution. Where necessary, the president should work with Congress to obtain additional authority.”
As an example, Holder cited the Bush administration’s work with Congress to pass the USA PATRIOT Act.
“We are safer today because we have those tools,” Holder said of the Patriot Act.
The full text of the letter is embedded below. Leah Nylen contributed to this report.
Two Republican members of the Senate Judiciary Committee fired a warning shot at Attorney General Eric Holder in a letter Friday, giving him notice that they intend to press him at an oversight hearing next week on several Supreme Court briefs he signed that he previously failed to disclose to the panel.
A story on The National Review’s Web site last week criticized Holder for not disclosing to the committee during his confirmation hearings two amicus briefs he signed with other former Clinton administration officials in the high-profile terrorism case of Jose Padilla. Several news sites later reported the omission of two additional briefs. The DOJ subsequently turned over those records to the Senate and apologized for the omission.
In the letter Friday, Jeff Sessions of Alabama and Jon Kyl of Arizona wrote that they will question Holder at the Judiciary Committee’s March 23 hearing on “the apparent contradictions” between his current views on terrorist detention and what he previously expressed in the briefs.
“Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators,” the senators wrote. “Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.”
They continued: “We agree with your pre-confirmation acknowledgment that there are national security risks associated with putting terrorists into our civilian criminal justice system. But we are troubled that, as Attorney General, you appear to have minimized and understated these risks in an effort to justify the administration’s flawed detention, interrogation, and prosecution policies.”
Read the full letter below:
Dear Attorney General Holder:
On March 10, we learned through media reports that you had submitted two amicus briefs to the Supreme Court in support of Jose Padilla, a U.S. citizen suspected of working with al Qaeda to carry out a terrorist plot on U.S. soil. The Padilla matter was a high-profile case broadly addressing national security authorities in an ongoing war. Nevertheless, you failed to disclose your participation in response to the Senate Judiciary Committee’s questionnaire during your confirmation process.
A Department of Justice spokesman said that the Padilla briefs were “unfortunately and inadvertently” not submitted to the Committee. Two days later, on March 12, Mr. Weich identified additional Supreme Court briefs that were not provided to the Committee during the confirmation process. These include four other Supreme Court briefs where you were listed as an amicus party. Thus, absent further revelations, your questionnaire appears to have omitted two-thirds of your work as an amicus party before the Supreme Court. Also missing from your questionnaire response were two Supreme Court filings where you served as counsel.
The failure to identify and disclose the Padilla briefs is particularly significant, given the important issues that case presented regarding the President’s detention authority. Your personal views on these issues — as set forth in the friend of the court briefs submitted in your name — was particularly relevant to the role that you, as Attorney General, now play in shaping detention policies and defending those policies in court. There can be no doubt that, had you submitted these briefs as required, members of the Committee would have asked you about them.
Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators. Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.
Last November, you defended your decision to prosecute KSM in the civilian criminal system by arguing that your chosen venue was “most likely to obtain justice for the American people.” When pressed on how you could guarantee successful prosecution, you boldly asserted that “failure is not an option.” You testified that you did not believe there was any meaningful risk that the detainees you were ordering to the United States for trial might be eventually released. With regard to the Christmas Day bomber, you defended your decision by writing that you were “confident that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.”
One of the Padilla briefs submitted in your personal capacity paints a very different picture of the inherent risks and tradeoffs that come with handling terrorists through the civilian system. In your Padilla brief, you acknowledged “limitations” that “might impede the investigation of a terrorist offense in some circumstances” and explained:
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.
We agree with your pre-confirmation acknowledgment that there are national security risks associated with putting terrorists into our civilian criminal justice system. But we are troubled that, as Attorney General, you appear to have minimized and understated these risks in an effort to justify the administration’s flawed detention, interrogation, and prosecution policies.
In light of recent revelations about this brief and others that were not disclosed in your questionnaire responses to the Senate Judiciary Committee, I respectfully ask that you respond to the following questions:
(1) In the questionnaire submitted to the Senate Judiciary Committee prior to your confirmation hearing, you disclosed three amicus briefs but not the briefs in support of Jose Padilla or the four other cases where you have now been identified as an amicus party. Why did you not disclose to the Committee your involvement in these cases on your nomination questionnaire? To the extent that the omissions were inadvertent, please: (a) describe the process by which your responses were prepared; (b) identify all individuals involved in that process; and (c) state whether you reviewed all responses for completeness and accuracy before submitting them to the Committee.
(2) Aside from the briefs, described in this letter, that were not submitted as required by the Senate Judiciary Committee questionnaire (Question 14(e)), are all other answers on your nominee questionnaire complete and accurate? If not, please submit any necessary corrections and/or supplemental materials.
(3) As described above, the 2004 amicus brief and its acknowledgment that the civilian system may render the government “unable to detain a dangerous terrorist or to interrogate him or her effectively” contrasts sharply with your November 2009 testimony before the Senate Judiciary Committee and the administration’s defense of its handling of the Christmas Day bomber. If you can, please reconcile these two seemingly contradictory positions on the risks posed by the civilian criminal system in terrorism cases, as well as which of these philosophies has informed the Department’s decisions in detainee matters.
Thank you in advance for your consideration of this matter. We respectfully ask you to respond to these questions prior to your next appearance before the Committee on Tuesday, March 23.
Two additional U.S. Supreme Court briefs have come to light that Attorney General Eric Holder did not disclose during his confirmation process in late 2008 and early 2009, as required by a Senate Judiciary Committee questionnaire, according to The Blog of Legal Times.
On Wednesday, a story in The National Review blasted Holder for not disclosing two amicus briefs to the Supreme Court in the high-profile terrorism case of Jose Padilla that he had joined in signing.
The undisclosed briefs reported Friday, one of which related to allegations of racial bias by prosecutors in jury selection, and the other involving the timing of Miranda warnings, bring the total number of undisclosed briefs to four.
In The National Review Online story, former Deputy White House Counsel Bill Burck and Press Secretary Dana Perino criticized the Attorney General both for not listing the briefs on his Senate questionnaire, and for the content of one of the briefs, which argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.
When Holder submitted his questionnaire to the Senate Judiciary Committee in December 2008, Republicans said it was incomplete. In response, Holder supplied additional materials to the committee before his confirmation hearing in January 2009, but the four amicus briefs were not among the new materials.
Justice Department spokesman Matthew Miller told Politico that “the [Padilla] 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.
At a meeting of the Judiciary Committee on Thursday Sen. Jon Kyl (R-Ariz.) said that it’s hard to believe the Holder simply forgot to disclose the Padilla briefs.
“Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country’s most-publicized terrorism cases?” asked Kyl. “To me, that strains credulity, and I’m someone who voted for Attorney General Holder.”
Holder’s defenders argued that omissions are simply unavoidable when preparing the questionnaires. Former Obama White House counsel Gregory Craig said that Holder should not be blamed.
“I’m sure it wasn’t Eric’s job to gather all the briefs,” Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, told the BLT. “The notion that this was an intentional oversight is preposterous.”
Republicans on the Senate Judiciary Committee have said that they will question Holder about the omissions when he appears before them during a previously scheduled Justice Department oversight hearing on March 23.
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Senate Minority Whip Jon Kyl (R-Ariz.) previewed Thursday the Republican offensive for the upcoming oversight hearing with Attorney General Eric Holder.
Holder is scheduled to testify before the Senate Judiciary Committee on March 23.
Kyl told members of the committee that panel Republicans will question the Attorney General about his 2004 amicus brief that recommended the Supreme Court stop the Bush administration’s efforts to try Jose Padilla as an enemy combatant.
The brief, which was signed by Holder, former Attorney General Janet Reno and two other top-ranking Clinton administration officials, 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.”
In a National Review column published yesterday, two Bush administration officials, Dana Perino and Bill Burck, argued that the brief contradicts Holder’s public remarks supporting his decision to treat alleged Christmas Day bomber, Umar Farouk Abdulmutallab, as a civilian. The brief was not disclosed to the panel when the Senate was reviewing Holder’s nomination. DOJ spokesman Matthew Miller told Politico was the omission was inadvertent and unfortunate.
Kyl called the non-disclosure of the brief “rather distressing.”
“Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.
Panel Republicans said they would also question the Attorney General about the DOJ lawyers who represented alleged terrorist detainees in the past and whether those attorneys were handling decisions on terrorism cases now. Last week, a group run by Liz Cheney, the former vice president’s daughter, released an ad that referred to the DOJ lawyers as the “al-Qaeda Seven” and questioned their loyalty to the United States.
Sen. Charles Grassley (R-Iowa), a Judiciary committee member, has asked the DOJ to name the lawyers. Assistant Attorney General Ron Weich did not identity all the DOJ officials in question in a Feb. 18 letter to Grassley. But Fox News later tracked down and published the names of the attorneys.
Kyl said the letter from Weich was “far from comforting” and there are still “serious conflict of interest questions” about the DOJ lawyers.
Senate Judiciary Committee chairman Patrick Leahy (D-Vt.) said on the Senate floor Wednesday that he was saddened by the “partisan and personal attack” against the DOJ lawyers.
“I would hope that we would not get into a discussion that some have had about the propriety of the people representing those who’ve been charged with crimes,” Leahy told panel members Thursday.
The confusion over the number of terrorism suspects who have been tried in civilian courts is now a little clearer, thanks to a George W. Bush-era funding request unearthed by Newsweek.
Attorney General Eric Holder angered conservatives in a letter to Senate Republicans last week that said the Bush administration tried “more than 300 individuals” in the criminal justice system. Republicans — including Sens. Jeff Sessions of Alabama and Jon Kyl of Arizona — have questioned the accuracy of the statistic and demanded proof for the number.
Yesterday, Fox News reported that the statistic came from a funding request submitted by the Justice Department in 2008. The request said the DOJ had won “319 convictions or guilty pleas in terrorism or terrorism-related cases” since Sept. 11, 2001.
“So those who say we just made up the number just need to go look at the old documents that were presented by the prior administration,” a Justice Department spokesman told Fox News.
That figure seems in line with numbers released earlier in the Bush administration.
The Justice Department said in a 2006 “Terror Fact Sheet” that “288 defendants have been convicted or have pleaded guilty in terrorism or terrorism-related cases” since 9/11. And Bush said in a 2003 speech that “more than 260 suspected terrorists have been charged in the United States courts, [and] more than 140 have already been convicted,” according to Fox News.
President Obama has recently cited a different number: He said on CBS last weekend that the Bush administration “prosecuted 190 folks in these [civilian] courts, got convictions, and those folks are in maximum security prisons right now,” according to Fox News.
Holder is expected to testify before the Senate Judiciary Committee next month for a DOJ oversight hearing. Senators will likely ask him to address the DOJ’s handling of terrorism suspects.
Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, today blasted Attorney General Eric Holder’s defense of the Justice Department’s handling of the alleged Christmas Day bomber.
Holder on Wednesday wrote in a letter to Senate Republican leaders — including Sessions — that he made the decision to bring criminal charges against the suspect, Umar Farouk Abdulmutallab. Holder added that his decision is “fully consistent” with the practices and policies of the federal government.
That did not satisfy Sessions. “I think this letter, in terms of accuracy and professionalism, fails,” Sessions said in remarks at a Senate Judiciary Committee business meeting today. “We’re entitled to better than this.”
Conservative senators have been critical of the administration’s decision to charge the alleged bomber criminally rather than put him in military custody for interrogation. Senators have sent numerous letters to Attorney General condemning the decision to treat Abdulmutallab as a civilian. Read our previous reports on three of the letters here, here and here.
Senate Judiciary Committee Republicans yesterday demanded a hearing with Holder. Panel Chairman Patrick Leahy (D-Vt.) said one is already in the works for March.
Here are some passages from Holder’s letter that Sessions criticized:
- Holder: “I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government.”
- Sessions: “This statement stands in stark contrast to the testimony of Homeland Security Secretary [Janet] Napolitano, Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and FBI Director Robert Mueller, all of whom said they were not consulted on the decision. And in fact, it does appear from the letter, if you read it carefully, that the decision was made before they were notified. It had already been made and a lawyer had already been appointed and he’d clammed up.”
- Holder: “Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. The prior Administration adopted policies expressly endorsing this approach.” He added: “In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war. Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant. Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later.”
- Sessions: “These two statements cannot be reconciled.”
- Holder: “In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.”
- Sessions: “He cites the holding of the reversed Second Circuit decision—that the President lacks the authority to detain a U.S. citizen as an enemy combatant on U.S. soil—without mentioning that the Supreme Court ruled one year later, in Hamdi v. Rumsfeld, that ‘[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant… A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States,’ … ’such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict’.”
- Holder: “[W]hen the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.”
- Sessions: “That is a misrepresentation of the situation. He never acknowledges that he is comparing apples to oranges. Judge Mukasey didn’t grant Padilla a lawyer as part of his arrest or interrogation. He granted Padilla a lawyer much later when he was filing a petition for habeas corpus to challenge the legality of his detention, and eventually he was appointed one. But not the night of his arrest.”
- Holder: “Richard Reid, a British citizen, was arrested in December 2001 for attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying 184 passengers and 14 crewmembers. He was advised of his right to remain silent and to consult with an attorney within five minutes of being removed from the aircraft … pled guilty in October 2002, and is now serving a life sentence in federal prison.”
- Sessions: “He cites how Richard Reid, the shoe bomber, was charged in the civilian criminal system, but fails to acknowledge that there was no military commission system in place at the time of his arrest in December 2001. The military commission system wasn’t brought under congressional authorization until 2006, when we passed legislation to do that.”
- Holder: “[T]he Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges.”
- Sessions: “Since May 2009, [Republican] Senator [Jon] Kyl [of Arizona] and I have been asking the Attorney General to explain the basis for this most questionable claim. To date, we have received no response to our repeated requests … for this information. If this figure is valid, why is the Attorney General not willing to explain it?”
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