Lindsey Graham (Gov)

Sen. Lindsey Graham (R-S.C.) praised Supreme Court nominee Elena Kagan for opposing habeus corpus rights for Guantanamo Bay detainees and hiring conservative professors while she was Harvard Law School dean.

Graham said he will question Kagan about her views. But he said she will likely meet “the qualification test” for a Supreme Court justice.

“The fact that that you’ve embraced liberal causes and have grown up in a liberal household is something we need to talk about, but that’s just America,” Graham said. “It’s okay to be liberal. It’s okay to be conservative.”

Senate Judiciary Committee Hearings on Elena Kagan
Opening Statement from U.S. Senator Lindsey Graham (R-South Carolina)
June 28, 2010

Thank you, Mr. Chairman.

Congratulations. I think it will be a good couple of days. I hope you somewhat enjoy it, and I think you will.

Like everyone else, I would like to acknowledge the passing of Senator Byrd. He was a worthy ally and a very good opponent when it came to the Senate. My association with Senator Byrd — during the Gang of 14, I learned a lot about the Constitution from him.

And as all of our colleagues remember, just a few years ago, we had a real — real conflict in the Senate about filibustering judicial nominees. And it was Senator Byrd and a few other senators who came up with the “extraordinary circumstances” test that would say that filibusters should only be used in extraordinary circumstances because elections have consequences. And Senator Byrd was one of the chief authors of the language defining what an “extraordinary circumstance” was.

I just want to acknowledge his passing is going to be loss to the Senate. And the thing that we all need to remember about Senator Byrd is that all of us are choosing to judge him by his complete career. And history will judge him by his complete career, not one moment in time, and that’s probably a good example for all of us to follow when it comes to each other and to nominees.

Now, you are the best example I can think of why hearings should be probative and meaningful. You come with no judicial record, but you’re not the first person to come before the committee without having been a judge. But it does, I think, require us and you to provide us a little insight as to what kind of judge you would be. You have very little private practice, one year as solicitor general, and a lot of my colleagues on this side have talked about some of the positions you’ve taken that I think are a bit disturbing.

But I’d like to acknowledge some of the things you have done as Solicitor General that I thought were very good. You opposed applying habeas rights to Bagram detainees. You supported the idea that a terror suspect could be charged with material support of terrorism under the statute and that was consistent with the law of wars history.

So there are things you have done as solicitor general that I think will merit praise and I will certainly, from my point of view, give you a chance to discuss those.

As dean of Harvard Law School, did you two things. You hired some conservatives, which is a good thing, and you opposed military recruitment, which I thought was inappropriate, but we will have a discussion about what all that really does mean. It’s a good example of what you bring to this hearing — a little of this and a little of that.

Now what do we know? We know you are very smart. You have a strong academic background. You got bipartisan support. The letter from Miguel Estrada is a humbling letter and I’m sure it will be mentioned throughout the hearings, but it says a lot about him. It says a lot about you that he would write that letter.

Ken Starr and Ted Olson have suggested to the committee that you are a qualified nominee. There’s no to doubt in my mind that you are a liberal person. That applies to most of the people on the other side, and I respect them and I respect you. I’m a conservative person. And you would expect a conservative president to nominate a conservative person who did not work in the Clinton Administration.

So the fact that you’ve embraced liberal causes and you have grown up in a liberal household is something we need to talk about, but that’s just America. It’s OK to be liberal. It’s OK to be conservative. But when it comes time to be a judge, you’ve got to make sure you understand the limits that that position places on any agenda, liberal or conservative.

Your judicial hero is an interesting guy. You’re going to have a lot of explaining to do to me about why you picked Judge Barak as your hero because when I read his writings, it’s a bit disturbing about his view of what a judge is supposed to do for society as a whole, but I’m sure you’ll have good answers and I look forward to that discussion.

On the war on terror, you could, in my view, if confirmed, provide the court with some real-world experience about what this country’s facing; about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting crime and fighting war. So you, in my view, have a potential teaching opportunity, even though you have never been a judge, because you have represented this country as Solicitor General at a time of war.

The one thing I can say without (sic) certainty is I don’t expect your nomination to change the balance of power. After this hearing’s over, I hope American — the American people will understand that elections do matter. What did I expect from President Obama? Just about what I’m getting. And there are a lot of people who are surprised. Well, you shouldn’t have been, if you were listening.

So I look forward to trying to better understand how you will be able to take political activism, association with liberal causes, and park it when it becomes time to be a judge. That, to me, is your challenge. I think most people would consider you qualified because you’ve done a lot in your life worthy of praise.

But it will be incumbent upon you to convince me and others, particularly your fellow citizens, that whatever activities you’ve engaged in politically and whatever advice you’ve given to President Clinton or Justice Marshall, that you understand that you will be your own person, that you will be standing in different shoes, where it will be your decision to make, not trying to channel what they thought. And if at the end of the day, you think more like Justice Marshall than Justice Rehnquist, so be it.

The question is: Can you make sure that you’re not channeling your political agenda, your political leanings when it comes time to render decisions?

At the end of the day, I think the qualification test will be met. Whether or not activism can be parked is up to you. And I look at this confirmation process as a way to recognize that elections have consequences and the Senate has an independent obligation on behalf of the people of this country to put you under scrutiny, firm and fair, respectful and sometimes contentious.

Good luck. Be as candid as possible. And it’s OK to disagree with us up here. Thank you.

Looks like a Rahm-Graham deal may pan out.

Republican Sen. Lindsey Graham of South Carolina has finalized the details of his proposal to change the nation’s terrorist detention system and White House officials have approached congressional Democrats in the hopes of garnering support for the plan on the Hill, the Washington Post reported Tuesday.

Graham’s proposal comes after weeks of discussion between the South Carolina senator and White House Chief of Staff Rahm Emanuel. In January, Emanuel and Graham began talks on a deal: Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks, would be tried in a military tribunal, in exchange for Graham’s support for a new U.S. detention center to replace Guantanamo Bay. (Graham has warned that his support for closing Gitmo would be affected by a civilian trial for KSM, which he adamantly opposes.) According to an unnamed administration official cited by The Post, those discussions have broadened and Graham now hopes to reach a “grand bargain” that would resolve many outstanding questions concerning terrorist detention.

The White House opposes some of the ideas in Graham’s proposal, such as a separate national security court to try alleged terrorist detainees, according to The Post. But other provisions — including one that would create a standard process for dealing with habeas petitions, where alleged terrorists challenge their status as “unlawful enemy combatants” in U.S. courts — are likely to find support, The Post said.

The president has struggled to find congressional support for his campaign promise to close the detention facility in Cuba, especially after Attorney General Eric Holder’s announcement last fall that KSM and his co-conspirators would be tried in civilian courts. That decision has been blasted by Democrats and Republicans alike.

Administration officials told the newspaper that they had begun preliminary talks with Democrats on the Senate Judiciary Committee about Graham’s proposal.

Holder was scheduled to appear before the panel for an oversight hearing today, but the hearing was postponed late Monday to allow senators to attend the signing ceremony of the health care legislation. GOP senators on the committee had planned to intensely question Holder about his views on terrorist detention. That hearing has now been rescheduled for April.

A Justice Department official told The Post that when Holder appears before the committee next month, he will testify that the decision to hold KSM’s trial in Manhattan was a “close call.”

At a Jan. 29 meeting at the White House, two days after New York Mayor Mayor Michael Bloomberg withdrew his support for trying Khalid Sheikh Mohammed in Manhattan, Attorney General Eric Holder urged the President to stand his ground.

Despite bipartisan resistance to the plan, Obama seemed to agree with Holder that a civilian court was the proper place to prosecute the 9/11 mastermind and his alleged co-conspirators. ”The only two people who still believe in civilian trials are Holder and the President,” one of the attendees told Time Magazine for a behind-the-scenes story of the tussle over trial venue published Thursday.

At the same meeting, Obama’s chief of staff, Rahm Emanuel, countered with a tit-for-tat proposal: KSM would be tried in a military tribunal, in exchange for the support of Sen. Lindsey Graham (R-S.C.) for a new U.S. detention center to replace Guantanamo Bay. (Graham has warned that his support for closing Gitmo would be affected by a civilian trial for KSM, which he adamantly opposes.)

Obama was skeptical of the idea but approved the negotiations with Graham, which brings us to today. The Obama administration has said a decision is weeks off, but a senior aide involved in the discussions told Time, “If there’s a Rahm-Graham deal to be had, we’ll do it.”

Attorney General Eric Holder has taken a lot of heat for his decision to try the accused Sept. 11 plotters in a civilian court. But if the White House changes course and returns the suspects to military commissions, Holder may be in an even worse position, the Wall Street Journal reported Wednesday.

Attorney General Eric Holder (photo by Ryan J. Reilly).

According to DOJ officials, Holder’s decision to try Khalid Sheikh Mohammed and his four alleged co-conspirators in civil courts was predicated in part on President Barack Obama’s speech at the National Archives last year, the Journal said. “First, whenever feasible, we will try those who have violated American criminal laws in federal courts—courts provided for by the United States Constitution,” Obama said in May.

Justice Department officials admitted to the Journal that they failed to sufficiently reassure local residents after Holder’s announcement, but expressed frustration that the White House blocked Holder and others from publicly speaking out in defense of the decision.

According to the paper, Holder told friends he thought he had Obama’s support for the civilian trials. But White House Chief of Staff Rahm Emanuel opposed the idea, the Journal said.

According to the Journal, White House officials said they were now leaning toward a military trial for KSM and the alleged co-plotters as part of an effort to cut a deal with lawmakers on closing the detention facility at Guantanamo Bay.

Sen. Lindsey Graham (R-S.C.) is a key player in the deal and has said his support for closing Guantanamo is conditional on military trials for Mohammed and the others. However, there are still doubts about winning support from several Democrats, administration officials and congressional aides said.

The American Civil Liberties Union blasted the potential reversal in a full-page ad in the New York Times on Sunday. Anthony Romero, the ACLU’s executive director, told the Journal that a reversal would undermine the Justice Department’s reputation as non-partisan.

“Any reversal would clearly indicate that the decisions of the Justice Department are much more politicized than we were led to believe,” Romero said. “This Justice Department needs to show more incontrovertibly that it stands on its own two feet.”

The Democratic chairs of the Senate Judiciary and intelligence committees told President Barack Obama today they support Attorney General Eric Holder’s handling of terrorism suspects.

Patrick Leahy (Getty Images)

Dianne Feinstein (gov)

Sen. Patrick Leahy of Vermont, the Judiciary panel chairman, and Sen. Dianne Feinstein of California, who chairs the Senate Select Committee on Intelligence, said they disagree with the barrage of recent criticism of the Attorney General and the Obama administration over decisions on terrorism cases.

“We should not let partisan distractions lead us to cast aside such valuable tools as the experienced terrorism interrogators of the FBI or forego convicting terrorists in our Federal courts,” the senators wrote in a joint letter to the president.

For months, Republicans have condemned Holder’s decision to try self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged coconspirators in a New York City federal court, arguing a military tribunal is a better forum. Democrats last month joined the criticism after New York City Mayor Michael Bloomberg (R) raised concerns about the costs and disruptions to Lower Manhattan of a lengthy trial requiring high security.

Republicans have also been upset over the decision to treat alleged Christmas Day airplane bomber Umar Farouk Abdulmutallab as a civilian and allow the FBI to read him the Nigerian national his Miranda rights after a brief interrogation. Sen. Kit Bond (R-Mo.), Sen. Lamar Alexander (R-Tenn.) and 2008 Republican vice presidential nominee Sarah Palin have suggested Holder resign over the issue.

Sen. Lindsey Graham (R-S.C.) introduced legislation earlier this month that would prohibit the Justice Department from using funds to prosecute KSM and his alleged accomplices in federal court. The bill has 27 co-sponsors, including Democratic Sens. Blanche Lincoln of Arkansas, Ben Nelson of Nebraska, Mark Pryor of Arkansas and Jim Webb of Virginia, all of whom represent conservative-leaning states. Independent Sen. Joe Lieberman of Connecticut, who caucuses with the Democrats, also is a co-sponsor.

Rep. Frank Wolf (R-Va.) introduced a companion bill in the House earlier this month. The bill has 49 co-sponsors, including Democratic Reps. Jason Altmire of Pennsylvania, Dan Boren of Oklahoma and Bobby Bright of Alabama.

“Congress should not tie the hands of our national security and law enforcement agencies, but should instead ensure they have the flexibility to use every means available,” Leahy and Feinstein said in their letter. “Congress should be working with you in a shared mission to most effectively protect our national security and to ensure that just convictions, once obtained, will be sustained and upheld.”

Eric Holder (DOJ)

White House chief of staff Rahm Emmanuel opposed Attorney General Eric Holder’s decision to try the alleged 9/11 plotters in federal court, arguing that it would alienate Republicans who support closing Guantanamo Bay but favor military commissions,  according to this story by the New Yorker’s Jane Mayer.

Emmanuel was particularly concerned about losing the support of Sen. Lindsey Graham (R-S.C.), a proponent of military commissions who had been key ally on closing the military-run prison and had lent a hand on other matters, including the confirmation of Supreme Court Justice Sonia Sotomayor, Mayer writes.

“There was a lot of drama,” an “informed source” told Mayer. “Rahm felt very, very strongly that it was a mistake to prosecute the 9/11 people in the federal courts, and that it was picking an unnecessary fight with the military-commission people.”

The source went on, “Rahm had a good relationship with Graham, and believed Graham when he said that if you don’t prosecute these people in military commissions I won’t support the closing of Guantánamo. . . . Rahm said, ‘If we don’t have Graham, we can’t close Guantánamo, and it’s on Eric!’

A bipartisan group of senators led by Graham unveiled legislation earlier this week that would prohibit the Justice Department from using funds to prosecute 9/11 “mastermind” Khalid Sheikh Mohammed and four of his alleged coconspirators in federal court.

The White House, however, continues to support civilian trials, and Holder said he will press forward with them, though his options are limited by a growing NIMBY mentality.

Last week, New York City Mayor Michael Bloomberg withdrew his support for holding the trials in city, dealing the plan a fatal blow. Officials in Northern Virginia, where al-Qaeda operative Zacarias Moussaoui was prosecuted, have been outspoken in their opposition to hosting another terrorism trial.

The New Yorker story also documents Holder’s reaction to surging criticism of his decision to leverage the criminal justice system against the Nigerian man accused of trying to blow up a Detroit-bound plane.

“What we did is totally consistent with what has happened in every similar case” since 9/11, he told Mayer. “There’s a desire to ignore the facts to try to score political points. It’s a little shocking.”

Earlier this week, Holder sent a pointed letter to Republican senators in which he accepted responsibility for the handling of the suspect, Umar Farouk Abdulmutallab. Holder noted that alleged terrorists apprehended in the U.S. since Sept. 11, 2001, have been detained under federal criminal law. He emphasized that “no agency supported the use of law of war detention” in high-level meetings immediately after Abdulmutallab’s arrest.

The letter was the strongest push-back yet from the Justice Department. Holder’s role was already known, as were his arguments supporting his decisions, but the Attorney General suffered weeks of hammering by Republicans before speaking up. (Several of his supporters praised the move but told Main Justice they wish he would have acted sooner.)

The New Yorker story is full of other great details, a few of which we’ve highlighted below.

Holder on toughness:

Some of Holder’s friends, who call him Mr. Nice Guy, wonder if he is as tough as some of these predecessors. “Attorneys General should be feared,” one legal observer told me. “They have incredible power. Holder makes correct decisions on the law, but he’s not aggressive.” Holder bristles at such characterizations. His Secret Service code name is Fidelity, but he joked, “I’d like something like The Hammer.”

and

Late last month, at home, in Northwest Washington, Holder addressed those who have suggested that he and Obama are too weak to take on terrorism. “This macho bravado—that’s the kind of thing that leads you into wars that should not be fought, that history is not kind to,” he said. “The quest for justice, despite what your contemporaries might think, that’s toughness. The ability to subject yourself to the kind of criticism I’m getting now, for something I think is right? That’s tough.” He paused, and added, “This is something that can get a rise out of me, the notion that somehow Eric Holder and Barack Obama, this Administration, is not tough. We have the welfare of the American people in our minds all the time. We’ll fight our enemies, and we’ll do that which is necessary, and we won’t turn our backs on the values and traditions that have made this country great. That is what is tough.”

The Holder Effect:

As Eric Fehrnstrom, [Scott] Brown’s political consultant, put it to me recently, the “most potent political issue” in the [U.S. Senate] race was voter opposition to the Justice Department’s decision to extend customary legal protections to suspected terrorists such as Khalid Sheikh Mohammed and Umar Farouk Abdulmutallab, the Nigerian suspect who on Christmas Day attempted to detonate a bomb on a Northwest Airlines passenger plane bound for Detroit.

and

Holder’s unpopular positions on terrorism issues have frustrated Obama’s advisers. The lawyer close to the Administration said, “The White House doesn’t trust his judgment, and doesn’t think he’s mindful enough of all the things he should be,” such as protecting the President from political fallout. “They think he wants to protect his own image, and to make himself untouchable politically, the way [former Attorney General Janet] Reno did, by doing the righteous thing.”

Taking on the Cheney Clan:

Holder tried to address his critics with lawyerly detachment. Dick Cheney had equated Holder’s approach to handling terrorism with giving “aid and comfort to the enemy”—the legal definition of treason. Holder said of Cheney, “On some level, and I’m not sure why, he lacks confidence in the American system of justice.” He added that he had seen documents making clear that Cheney’s office was the driving force behind the Bush Administration’s most controversial counterterrorism policies, especially those sanctioning brutal interrogations. He said of Cheney, “I think he’s worried about what history’s judgment will be of the role that he played in making decisions about everything from black sites to enhanced interrogation techniques.” Holder said that he doesn’t know Elizabeth Cheney, but noted, with a laugh, “She’s clearly her father’s daughter.”

Taking on Rudy Giuliani:

Holder told me that he was “distressed” that people “who know better” were claiming that the courts were not up to the job of trying terrorists. He added that he found it “exceedingly strange” to hear this argument from Giuliani, who had been a zealous prosecutor. “If Giuliani was still the U.S. Attorney in New York, my guess is that, by now, I would already have gotten ten phone calls from him telling me why these cases needed to be tried not only in civilian court but at Foley Square,” Holder said.

Walk With Me:

On January 5th, Obama held a national-security meeting in the White House Situation Room to review how the Administration had failed to detect and prevent the Christmas Day plot. Afterward, Holder said, Obama asked him to walk back to the Oval Office with him. “We talk about these matters,” Holder said. “The decisions are, relatively, mine. I take responsibility for them. But these are things where he is kept in the loop, and the direction he gives obviously has to be factored into any decision I make.” Holder declined to reveal details of their recent discussion but said, “We are on the same page.” He added, “He recognizes that being Attorney General at this time is not the easiest job in the world.”

Former Attorney General Michael Mukasey spoke to Senate Republicans this afternoon, hours after he blasted Attorney General Eric Holder’s handling of the civilian trials for the five alleged planners of the Sept. 11 attacks.

Michael Mukasey

Republican leaders declined to say what Mukasey spoke about at the Senate GOP’s weekly lunch. The last Attorney General of the George W. Bush administration, Mukasey said on the Fox News program “Fox and Friends” this morning that Holder’s decision to try self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators in a New York civilian court made it look like “amateur night” at the DOJ.

“[Mukasey] has been a leader, as you know, not only as Attorney General, but since leaving as Attorney General, in helping everyone understand the difference between someone who tries to bomb a convenience store on one hand and someone who tries to blow up a plane on another,” Senate Minority Leader Mitch McConnell (R-Ky.) said at press conference following the lunch meeting.

McConnell went on to praise Sen. Lindsey Graham for bipartisan legislation the South Carolina Republican unveiled today that would prohibit the DOJ from using funds to prosecute KSM and his alleged accomplices.

“I think the administration is going to retreat here,” the minority leader said.

Elsewhere on Capitol Hill Tuesday, National Intelligence Director Dennis Blair and FBI Director Robert Mueller testified before the Senate Select Committee on Intelligence about the man who allegedly tried to ignite explosives in his underpants on a Dec. 25 Detroit-bound airplane flight as a civilian.

Sen. Christopher Bond (Mo.), the panel’s ranking Republican, criticized the Obama administration’s decision to treat Umar Farouk Abdulmutallab as a civilian.

The Republican senator said “treating terrorists like common criminals can cost us life-saving information.”

Mary Jacoby contributed to this report.

A bipartisan group of senators led by Sen. Lindsey Graham (R-S.C.) unveiled legislation today that would prohibit the Justice Department from using funds to prosecute 9/11 “mastermind” Khalid Sheikh Mohammed and four of his alleged coconspirators in a federal court.

And Graham, flanked by his bill co-sponsors, told reporters on Capitol Hill that he that he isn’t playing politics over closing the Guantánamo Bay military prison. That was in response to President Obama’s complaint Monday on You Tube that “pretty rank politics” were slowing down his plan to relocate or prosecute about 200 terrorism suspects at the U.S. military base in Cuba.

Graham was flanked by seven co-sponsors of his measure, Jim Webb (D-Va.), Blanche Lincoln (D-Ark.), Joe Lieberman (I-Conn.) John McCain (R-Ariz.), Saxby Chambliss (R-Ga.), Orrin Hatch (R-Utah) and John Barrasso (R-Wyo.).

Lindsey Graham (Gov)

Last year, Attorney General Eric Holder announced that KSM and his alleged accomplices would be tried in civilian court in New York, instead of a military tribunal. Now, the DOJ is “scrambling” to find other locations for the civilian trial after sharp criticism about security and cost from key politicians, including New York City Mayor Michael Bloomberg.

“This whole process makes no sense,” Graham said. “It’s not about ‘rank politics’.”

One after another the bill co-sponsors came up to the microphone to denounce civilian trials for terrorism suspects, including Umar Farouk Abdulmutallab, who allegedly tried to ignite explosives in his underpants on a Dec. 25 Detroit-bound airplane flight.

Webb said holding non-military trials for terrorism suspects could “benefit the international terrorist movement.” Lieberman, who chairs the Senate’s Homeland Security and Governmental Affairs Committee, called the trials “justice according to ‘Alice in Wonderland’.” Sessions, who is the ranking Republican on the Judiciary Committee, said they are “a big mistake.”

“I think the president would do himself a great favor if he would overrule and say we’re not going to try these people here [in this country],” said Hatch, who also serves on the Judiciary Committee.

Graham told reporters that he doesn’t expect his bill to have a problem passing the Senate after the recent discussions concerning KSM and Abdulmutallab. The Senate defeated a similar proposal from Graham last November, tabling it on a 54-45 vote. Rep. Vern Buchanan (R-Fla.) introduced a bill in the House last month that would prevent terrorism suspects from receiving civilian trials.

The fiscal 2011 Justice Department budget unveiled on Monday requests that Congress allocate $73 million for transferring, prosecuting and incarcerating Guantánamo Bay detainees.

“Yesterday, the president introduced his budget and he said that anybody who had a good idea on how to get some savings in the budget let us know,” Barrasso said. “Well we all want to let the president know that there is a lot of savings to be had by not having these trials anywhere in the United States and keeping them in a military court. I think basically the Attorney General got it wrong.”

Videos of a Fox News interview with Chambliss, comments from Sen. Jeff Sessions (R-Ala.) at the press conference and a Fox News interview with Rep. Frank Wolf (R-Va.) about the House legislation are embedded below.

This post has been corrected from an earlier version.

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.

Dawn Johnsen's nomination to head the Office of Legal Counsel hit implacable Republican opposition. (Image via CAP Action Fund)

The Republicans on the Senate Judiciary Committee asked Chairman Patrick Leahy (D-Vt.) to hold new hearings on Dawn Johnsen to become the new assistant attorney general for the Office of Legal Counsel.

The GOP senators argue that the failed Christmas Day bombing as well as other events require the panel to hold fresh hearings on her nomination, which the Senate returned to the White House without action on Dec. 24, Roll Call first reported yesterday. President Barack Obama intends to re-nominate her, despite Republican concerns about her criticism of the George W. Bush administration’s national security policies.

The letter obtained by Main Justice and signed by Republican Sens. Jeff Sessions (Ala.), Orrin Hatch (Utah), Chuck Grassley (Iowa), Jon Kyl (Ariz.), Lindsey Graham (S.C.), John Cornyn (Texas) and Tom Coburn (Okla.) says:

In recent weeks, there have been several incident threatening our national security and underscoring the need for more aggressive counterterrorism efforts, information sharing, and military and intelligence initiatives to uproot and eliminate al Qaeda and its affiliates from footholds around the globe.  At a time like this, it is essential that the Department of Justice provide sound legal guidance to the various intelligence and counterterrorism agencies within our government.

We believe many unanswered questions remain about Dawn Johnsen’s suitability to guide our Nation’s legal response to the war on terror through the Office of Legal Counsel (OLC). Mrs. Johnsen’s record calls into question her dedication to aggressive Executive action in national security matters. She has supported backward-looking investigations and written that the last administration’s detainee policies “failed miserably.” She has consistently advocated placing unnecessary constraints on the President and our intelligence professionals, constraints not required by our laws or Constitution.  Based on her statements, it is unclear whether Ms. Johnsen would be able to set aside her personal biases and provide the type of objective, yet aggressive, constitutional legal advice the President will need to effectively combat the continued terror threat. Accordingly, we ask that you hold a new hearing on her nomination before scheduling her nomination for a Committee vote.

We do not make this request lightly, but feel compelled to do so based on the nominee’s record and the position to which she has been nominated. In recent years, the OLC has been critical in authorizing appropriate government action to combat al Qaeda. For example, the Clinton administration OLC reportedly determined as a matter of law that the Executive Order banning assassinations did not apply to the targeting of top al Qaeda leadership, a ruling that appears to have been vital to CIA efforts in the 1990s and even America’s aerial drone program today. It is critical that OLC be led by a lawyer who is willing to support and authorize all necessary and appropriate action in our Nation’s continued war against al Qaeda.

For the Committee to properly discharge its advice and content duty, we believe a second hearing is necessary to evaluate Ms. Johnsen’s nomination and approach to the serious national security questions currently facing the administration.

A spokesperson for Leahy was unable to comment immediately. A spokesperson for Sessions, the ranking Republican, did not immediately respond to a request for comment on the letter and whether Republicans would call for hearings for former DOJ Tax Division nominee Mary L. Smith and ex-Office of Legal Policy nominee Christopher Schroeder. Obama intends to re-nominate the two former nominees, who were returned to the White House with Johnsen on Dec. 24.

Marge Baker, executive vice president of the liberal advocacy group, People For the American Way, released this statement:

“This latest maneuver by Senate Republicans is anything but a good faith effort to protect national security. We absolutely face serious threats, and the Obama administration needs all hands on deck. Yet Senate Republicans are holding up crucial nominees like Johnsen and Erroll Southers, the president’s nominee to head TSA.

“Dawn Johnsen was nominated over 11 months ago, and Senators have had months following her hearing to seek additional information and to consult with her. That never happened. But now that the media is reporting that Johnsen has 60 votes for confirmation, Senate Republicans are suddenly interested in engaging her.

“The request for a second hearing is a transparent and brazen effort at obstruction, and too much is at stake to waste time on it. The seven Republicans on the Judiciary Committee have had their say – they voted in lockstep against Johnsen. But 60 Senators – including senior Senate Republican Richard Lugar – support her.

“Dawn Johnsen is widely considered to have the integrity, experience, and acumen to lead the Office of Legal Counsel. She also has an abiding commitment to our national security and rule of law. We strongly urge the Judiciary Committee to quickly move the resubmitted nomination to the floor for an up-down vote.”

Andrew Ramonas contributed to this report.

This post has been updated from an earlier version.