Posts Tagged ‘military tribunals’
Wednesday, December 15th, 2010

Conservative arguments against civilian trials for terrorism suspects appear to be making headway. Sixty-three percent of respondents to a recent Rasmussen Reports poll now say accused terrorists should go before military tribunals, up nine points from two years ago.

The national telephone survey of 1,000 likely voters people was conducted Dec. 9-10. The poll released Tuesday has a margin of sampling error of plus or minus three percentage points.

The survey found that 63 percent of people favor military tribunals, compared with 23 percent who prefer civilian courts, with 13 percent undecided. In July 2008, 54 percent of likely voters favored military trials.

Federal courts routinely handle terrorism suspects. But the issue of trial venue became politicized last year when Attorney General Eric Holder quickly ran into opposition to his plan to try self-proclaimed 9/11 mastermind Khalid Sheikh Mohammed and four alleged co-conspirators in federal court in Manhattan.

Former Vice President Dick Cheney and other conservatives attacked the decision. Later, bipartisan opposition to the costs and security issues of the trial emerged in New York, and President Barack Obama overruled Holder’s decision. Mohammed remains in limbo in the Guantanamo Bay prison with no military or civilian trial scheduled.

The Rasumussen poll also showed that  46 percent of respondents favor a ban on transferring suspected terrorists to the U.S., while 32 percent oppose such a ban, with 23 percent undecided. The responses come as Congress considers a legislative provision that would ban the transfer of terrorism suspects from the Guantanamo Bay prison camp to the U.S. for any reason. The legislation is attached to a “must-pass” $1 trillion bill to fund the government, according to The Daily Caller.

Holder has urged Congress not to pass the legislation.

Wednesday, June 2nd, 2010

John Ashcroft (photo by Andrew Ramonas / Main Justice)

Former Attorney General John Ashcroft defended the use of military commissions for terrorism suspects in a speech before the conservative Heritage Foundation on Wednesday.

The Obama administration is in the process of reviewing whether terrorism suspects housed at Guantanamo Bay should face trials in civilian or military courts as they work to close the military prison.

Ashcroft, who served as the nation’s top law enforcement official from 2001 to 2005, said proceedings before the military tribunals would be fair to the defendants and dismissed the concerns of liberal groups, including the American Civil Liberties Union. He said the use of commissions would not result in “cooked justice.”

“The rights of individuals are respected by our military,” Ashcroft said. “They are the people who give their lives in order to defend those rights. And it is less than fair to suggest that because you have a military commission, somehow you will be disrespecting justice.”

The Obama administration has slated some detainees for trials before military commissions. But Attorney General Eric Holder announced late last year that self-proclaimed Sept. 11 mastermind Khalid Sheikh Mohammed and his alleged co-conspirators were destined for a civilian court in New York.

Holder has since backed off his announced plans for KSM and his alleged accomplices after backlash from Republican and Democratic leaders. He has said that military commissions are once again on the table for the terrorism suspects.

Ashcroft also said the Obama administration should continue to hold terrorism suspects at Guantanamo Bay and the prison is good facility to house alleged terrorists captured by soldiers on the battlefield.

“The idea that somehow there is something evil about Guantanamo, I think is a bankrupt idea,” the former Attorney General said.

Thursday, March 18th, 2010

Judge Julia Gibbons testifies before an appropriations subcommittee in 2007. (

The federal judiciary is requesting $22 million in fiscal 2011 to cover expected costs associated with “high-threat” trials of suspected terrorists.

The request, the first of its kind, acknowledges “certain security and logistical challenges” unique to terrorism trials but steers clear of the raging debate over whether suspected terrorists should be prosecuted in federal court or by military tribunal.

Still, opponents of civilian trials could use the request to bolster arguments that prosecuting suspected terrorists in federal court is too pricey and endangers surrounding communities.

The $22 million is part of the federal judiciary’s $7.3 billion budget request, which was presented to a House Appropriations subcommittee on Thursday.

Judge Julia Gibbons, who chairs the budget committee of the Judicial Conference, the federal judiciary’s policymaking body, said the trial of Zacarias Moussaoui in Alexandria, Va., underscored the need for additional resources.

During the 2006 death penalty trial of Moussaoui, a convicted 9/11 conspirator, the city bogged down with armed guards, rooftop snipers, bomb-sniffing dogs, blocked streets and identification checks.

“High-threat trials in the federal courts present certain security and logistical challenges that must be addressed,” Gibbons said.

Gibbons, of the U.S. Court of Appeals for the 6th Circuit, also pointed to the cases of “shoe bomber” Richard Reid in Boston and Umar Farouk Abdulmutallab in Detroit.

Abdulmutallab, who is accused of attempting to blow up an airliner on Christmas Day, has been the focal point of the debate over whether the criminal justice system is equipped to handle suspected terrorists. Republicans have criticized the Obama administration, saying valuable intelligence was likely lost when FBI agents read him his Miranda rights. The White House has said Abdulmutallab began cooperating with authorities after initially clamming up.

Gibbons made no mention of Khalid Sheikh Mohammed, the self-professed 9/11 mastermind, whose planned trial in  Manhattan was abandoned in the face of bipartisan opposition. (The Obama administration has proposed spending $73 million for security, detention, litigation and transfer of the Mohammed and four alleged 9/11 co-conspirators, who are being held at the military-run prison at Guantanamo Bay.) The Obama administration is in the process of deciding whether the suspects should be tried in military tribunal or federal court.

The $22 million, Gibbons said, would be for security, juror expenses and court-appointed defense counsel costs in “high-threat” terrorism trials. While the Justice Department is responsible for the U.S. Marshals Service, which protects court officers and buildings, the federal judiciary employs additional security guards, a courts spokeswoman said.

Gibbons said her committee would work closely with Congress to refine the request “once we have a better understanding of the number and location of high-threat trials that will take place in federal court.”

See Gibbons’ full remarks below:

I would like to turn briefly to an issue that has been widely discussed in recent months: the issue of whether suspected terrorists should be prosecuted in federal court or by military tribunal. As a neutral party in our system of justice, the Judiciary, of course, has remained silent in this debate. The decision on the appropriate venue to prosecute suspected terrorists will be determined by the Administration and Congress, as is appropriate.

My only comment on this topic is that high-threat trials in the federal courts present certain security and logistical challenges that must be addressed, such as those experienced with the Moussaoui case at the federal courthouse in Alexandria, Virginia, and the Reid (shoe bomber) case at the federal courthouse in Boston, Massachusetts. A case currently in federal court that has been widely publicized is the case of Umar Farouk Abdulmutallab, who has been charged with attempting to detonate an explosive device on a flight from Amsterdam to Detroit on December 25, 2009. He was indicted in federal district court in Detroit and is being held awaiting trial. As with any high-threat trial in federal court, the Judiciary works closely with local and federal officials as appropriate to provide a safe and secure venue for the proceedings.

The Judiciary’s fiscal year 2011 budget request includes $22 million for security, juror expenses, and court appointed defense counsel costs associated with high-threat trials. We will work closely with the Committee to refine this estimate once we have a better understanding of the number and location of high-threat trials that will take place in federal court.

Monday, March 8th, 2010

In a full page ad in the Sunday New York Times, the American Civil Liberties Union appealed to President Barack Obama to keep the trial of the Sept. 11 plotters, including alleged mastermind Khalid Sheikh Mohammed, in civilian courts.

In November 2009, Attorney General Eric Holder announced that the Justice Department would try KSM in New York City near the site of the World Trade Center attacks. After initially expressing support for the trial, New York City business leaders and Mayor Michael Bloomberg changed course, complaining in January about the potential cost and disruption of a trial in Manhattan. Last week, The Washington Post reported that President Obama’s advisers are close to recommending that the DOJ return KSM to a military tribunal for prosecution.

In the ad, which features an image of Obama morphing into President George W. Bush, the ACLU calls on the president to support Holder’s original plan to try KSM and other Sept. 11, 2001, conspirators in civilian courts.

The ACLU has been critical of several of Obama’s national security and terrorism policies, saying his administration is beginning to have too many similarities to the Bush administration, such as a reliance on a “state secrets” privilege to keep information on some terrorism suspects out of court.

Anthony Romero, executive director of the ACLU, recently criticized the shift to military commissions, saying if such a change is made Obama would deal “a death blow to his own Justice Department.”

The full page ad the ACLU took out in the Sunday New York Times.

Monday, February 15th, 2010

President Barack Obama and Attorney General Eric Holder (White House photo).

We recently wrote about the Attorney General’s communication strategy over the past several weeks, as Republican criticisms of his national security decisions intensified. Holder’s approach had been very low-key — to a fault, his supporters told us — until about two weeks ago, when the Attorney General wrote a pointed letter to Sen. Minority Leader Mitch McConnell (R-Ky.) defending  his decision to charge the alleged Christmas Day bomber in the criminal justice system.

The New York Times today has a story that sheds more light on Holder’s messaging since his November announcement that the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged conspirators would be tried in federal court in Manhattan. The plan crumbled in the face of intense criticism, but Holder never reemerged to explain himself — by White House design.

The Times reports:

The White House, wanting to move on quickly, overruled Mr. Holder’s request for more public appearances to explain the decision, administration officials said. In the resulting vacuum, critics denounced the civilian trial plan as a soft-on-terror capitulation to liberals.

Two weeks ago, probably just before the Feb. 3 letter to McConnell, Holder met with White House advisers “to discuss how to unite against common foes,” as the Times describes the meeting. The advisers agreed to let Holder speak out more — as we noted, he has not appeared on a Sunday talk show since his confirmation and has given few extended interviews, until this point — and Holder agreed to allow the White House to help sharpen his message.

Holder told the Times in an interview last week that the political attacks were “starting to constrain my ability to function as attorney general.”

“I have to do a better job in explaining the decisions that I have made,” he said, adding, “I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side.”

The Times story begins with an anecdote that highlights Holder’s shifting views of his role as department spokesman. (It also touches on his strained relationship with David Ogden, who stepped down as Holder’s deputy this month.)

After Holder gave a speech last year calling the United States a “nation of cowards” for avoiding discussions on race, President Obama distanced himself the remark. But his advisers went much further. According to the Times:

Rahm Emanuel and Jim Messina, the White House chief and deputy chief of staff, proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better “political antennae,” as one administration official put it.

When he heard of the proposal at a White House meeting, Mr. Holder fumed; soon after, he confronted his deputy, David W. Ogden, who knew of the plan but had not alerted his boss, according to several officials. Mr. Holder fought off the proposal, signaling that his job was about the law, not political messaging.

His most important plan — to try Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 attacks, in federal court in Manhattan — collapsed before it even began, after support from the public and local officials withered.

A year later, he is no longer so certain.

It appears we’ll be seeing a lot more of the Attorney General.

Monday, February 8th, 2010

Attorney General Eric Holder (DOJ)

This story was updated on Feb. 9.

As Republican criticism of Attorney General Eric Holder’s judgment mounted in recent weeks, the Justice Department at first seemed caught off guard.

Nearly two weeks lapsed between a demand from Sen. Jeff Sessions (R-Ala.) that the department identify who decided to criminally charge the alleged al-Qaeda associate who tried to blow up an airplane on Christmas Day, and Holder’s admission in a Feb. 3 letter that, “I made the decision.”

In that period Holder — and his boss, President Barack Obama — took a beating from conservatives.

Since then, the White House and the Justice Department have stepped up their messaging campaigns. But their communications strategies have been different and, at some points, seemingly uncoordinated, highlighting what outside observers say are underlying tensions between Holder’s law enforcement role and Obama’s political imperatives.

After Sessions, the top Republican on the Senate Judiciary Committee, asked on Jan. 21 who decided to read Miranda rights to Nigerian national Umar Farouk Abdulmutallab, White House press secretary Robert Gibbs pointed to Holder.

Gibbs’ comments during a press briefing were followed by Justice Department spokesman Matthew Miller issuing a statement defending the prosecution of Abdulmutallab as in line with Bush administration policies, but notably not identifying Holder with the decision directly.

Similar information appeared on the Justice Department’s blog. And a page was added to department’s Web site, titled “The Criminal Justice System as a Counterterrorism Tool.”

Then last Tuesday, the White House — not the Justice Department — summoned reporters to the White House for a briefing, in which officials speaking on background explained that the Nigerian suspect, Umar Farouk Abdulmutallab, has been cooperating with the FBI since last week.

The day after the White House briefing, Holder sent a letter to Senate Minority Leader Mitch McConnell (R-Ky.) and other Republicans, taking responsibility for the Abdulmutallab prosecution and forcefully making his case for criminally charging the man alleged to have tried to blow up the airplane with explosives hidden in his underwear.

But in recent days, White House officials — including Obama himself - have been more visible in countering the Republican attacks than Holder, at least in terms of reaching a mass audience through television.

On Sunday, Obama told CBS News in an interview, “The most important thing for the public to understand is we’re not handling any of these cases any different than the Bush administration handled them all through 9/11.” Also Sunday, White House counterterrorism adviser John Brennan said on “Meet the Press” that he is “tiring of politicians using national security issues such as terrorism as a political football.”

Holder, by contrast, delivered his most vigorous defense of terrorism prosecution decisions in the letter to the Republican senators, and in a New Yorker profile by Jane Mayer published last Thursday. He did not take to the air waves to make his case.

Andrews Kurth partner Roscoe Howard Jr., a former U.S. Attorney in D.C., said Holder exhibited “a natural prosecutor’s reaction” to the criticisms.

“I don’t think it’s anything more than him being careful,” said Howard, who was U.S. Attorney here from 2001 to 2004. “A judge might fault you for a lot of things, but they’re not going to fault you for refusing to hold a press conference.”

The New Yorker story, which had apparently been in the works for months, quoted the Attorney General himself at length laying out arguments for using the criminal justice system to try terrorists, and framing the national security debate as a battle of politics versus principles.

The piece, however, also presented the clearest argument yet that President Barack Obama’s advisers view Holder as a potential political liability, and the opinion polls appear to back them up.

A CNN/Opinion Research Corporation poll conducted Jan. 8 to Jan. 10, for example, showed that 57 percent of respondents said they would rather see Abdulmutallab charged in a military commission versus 42 percent who favored a civilian trial. Holder’s decision to try the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, in federal court also met with profound disapproval in earlier opinion polls.

The pollster for Scott Brown, the Republican victor in the Massachusetts Senate race, told The New York Times recently that voters supported him 63 percent to 26 percent when told Brown favored charging suspected terrorists in military commissions while his Democratic opponent would give them constitutional rights and a civilian trial.

“This moved voters more than the health care issue did,” said Neil Newhouse, the pollster. “The terrorism stuff resonated, and it wasn’t just from the advertising we did.”

That means Holder needs to be more political — in shaping his message, not in the execution of his duties as Attorney General, his supporters say. And they hope last week was a sign he’s going to get tougher on his opponents.

“The Attorney General is his own best spokesperson. It appears that he is assuming that role and is taking a more aggressive public posture,” said James Flood, a former prosecutor and counsel to the Senate Judiciary Committee.

Flood, a shareholder in the Washington office of Brownstein Hyatt Farber Schreck, said that the Attorney General was constrained by legal considerations when speaking publicly, as are all prosecutors. But he added that he hoped to see more of Holder in print and on television.

Holder, like former Attorney General Janet Reno, has kept a busy schedule of public speaking engagements. And he has appeared on Capitol Hill (and will do so again). But his media exposure has been more limited. He has granted only a handful of extended interviews. In July, he spoke on camera with Pierre Thomas of ABC News and gave an interview to Daniel Klaidman of Newsweek.

When Holder gives print interviews, he often chooses writers and publications who run the kind of long-form profiles that can present him and his decisions in context. And they convey a sweep that rarely does the Attorney General disservice. For example, the Newsweek piece last summer began this way: “It’s the morning after Independence Day, and Eric Holder Jr. is feeling the weight of history.”

By contrast, Holder has not appeared on a Sunday talk show, where his words risk being reduced to more simplistic sound-bites, since his confirmation a year ago. And he’s held few news conferences to field questions from the media.

Reno, whose parents were reporters, gave weekly news conferences, though they weren’t always useful. (Sometimes, they consisted of her declining to answer one question after another.) But her accessibility was part of a carefully cultivated persona, which also stressed her independence from politics.

She became popular with the public, and that helped carry her through eight years of the Bill Clinton administration, in which she was on the outs with the president for appointing Independent Counsel Kenneth Starr, whose investigation led to Clinton’s impeachment by the House.

In the New Yorker piece, an unnamed lawyer close to the administration said the White House believes Holder isn’t doing enough to protect the president from political fallout, comparing him unfavorably to Reno. “They think he wants to protect his own image, and to make himself untouchable politically, the way Reno did, by doing the righteous thing,” the lawyer told the New Yorker.

But others say Holder’s not doing enough to insulate himself.

Reno overcame withering criticism of a deadly 1993 siege of a religious cult in Waco, Texas, by publicly accepting responsibility. Some say the act defined her as Attorney General.

Holder recently has had trouble getting out in front of the story. As Republicans grew more bold in their criticism of Holder’s handling of Abdulmutallab, he remained silent. And after White House press secretary Robert Gibbs identified Holder as the decision-maker in a Jan. 21 briefing, the Attorney General waited two weeks to send his letter to Congress.

In the meantime, Republican arguments — some of which were plainly false — gained traction.

“I wish Holder and the press apparatus were just a little more passionate in explaining their position,” said Carl Stern, who covered 15 attorneys general as a reporter before joining the Clinton administration as Reno’s chief spokesman. “I can understand as professionals they like to stay cool and above the fray, but then they shouldn’t complain if they become the victims of this ideological stuff.”

But, he added, last week’s activity was a step in the right direction.

Friday, February 5th, 2010

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.”


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.


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.”

Tuesday, January 26th, 2010

In deciding the fate of dozens of inmates at Guantanamo Bay, federal judges have been thrust into the position of crafting law that could end up governing U.S. detention of terror suspects around the world.

With so much at stake, Attorney General Eric Holder has relied heavily on the Justice Department unit that contemplates the executive branch’s thorniest legal questions, the Office of Legal Counsel, giving way to an unusual system where advisers are editing the work of the advocates.

OLC is enmeshed in more than 100 cases initiated by Guantanamo Bay detainees who are challenging their confinement in federal court in Washington. OLC lawyers review and revise virtually every brief filed in the cases, a break with tradition that has created some friction between the office and lawyers who defend the government’s positions in court, said several current and former Justice Department officials.

OLC acts as outside counsel for the president and the agencies, and its advice, often memorialized in opinions, is expected to represent the best reading of the law, but not necessarily the most popular. Rarely does the office concern itself with litigation, in part because it must be neutral to be effective, said one former OLC official.

Peter Shane (Ohio State University)

“OLC is generally not an advocacy unit,” said Peter Shane, a law professor at Ohio State University and a former OLC lawyer during the Carter administration. “A large part of the office’s credibility has been based on the notion that it has kind of a quasi-adjudicative role.”

The office worked closely with the task force that recently completed a yearlong review of the Guantanamo Bay detainees. The task force determined that of the 198 detainees at the military-run prison, about 50 are unprosecutable but thought to be too dangerous to transfer, underscoring the importance of the habeas corpus cases — the chief means for testing the Obama administration’s detention regime.

The Supreme Court’s 2008 decision in Boumediene v. Bush recognized the right of Guantanamo Bay prisoners to challenge the legitimacy of their detention. But the high court left it to the lower courts to shape the proceedings, and the Obama administration has not asked Congress to intervene. (Interestingly, several judges overseeing the cases have spoken publicly about need for a guidance from Congress.)

Absent legislation, the habeas cases have become vehicles for hashing out questions about the scope of the government’s detention authority, the admissibility of evidence extracted through coercion, and the burden of proof required to hold prisoners indefinitely, among others.

Current and former officials said the cases play to talents of the OLC, jokingly referred to as “finishing school” for Supreme Court clerks, and they pointed out that several other Justice Department offices are involved in the effort.

The Civil Division’s Federal Programs Branch and Appellate Section, which have primary responsibility for the habeas cases, also collaborate with the offices of the Solicitor General, Associate Attorney General, Deputy Attorney General, and Attorney General, as well as the National Security Division.

“These cases present questions that have not been faced by the department or this administration previously,” said a senior Justice official.

New Responsibilities

In first months of the Obama administration, some legal experts questioned whether OLC was losing influence. They pointed to several signs.

The White House counsel’s office, for one, began in 2009 with about two dozen lawyers, a higher headcount than in OLC. The president, typically OLC’s biggest client, seemed to be building his own law firm.

Then, in April, a report emerged that the Attorney General had overridden OLC’s judgement that a District of Columbia voting rights bill, which Holder supports, was unconstitutional. The Attorney General went to the Solicitor General’s Office for a second opinion, and lawyers there told him they could defend the legislation if enacted.

It made OLC appear as if its advice were dispensable.

Complicating matters, the Obama administration has been unable to install a Senate-confirmed Assistant Attorney General in the office. Law professor Dawn Johnsen’s nomination has been held up in the Senate for nearly a year over Republican opposition to her vocal criticism of the Bush administration’s national security policies and her past work for an abortion rights group.

But far from ceding ground, the office has taken on new responsibilities, including guiding the Guantanamo Bay task force’s thinking on which detainees should be prosecuted, transferred or held indefinitely — and then seeing that its recommendations are executed in court.

Jones Day partner Gregory Katsas, a former Assistant Attorney General in the Civil Divison during the Bush administration, said that collaboration was typical of high-profile cases, but that the degree of OLC’s involvement was not.

Gregory Katsas (Jones Day)

“When we had the detainee cases, we would talk informally between the litigators and the counselors,” said Katsas, who was the Civil Chief when the Supreme Court decided Boumediene. ”We gave OLC drafts here and there, but the practice of having OLC set up as an overseer of the Civil Division on a regular basis is very new.”

OLC officials referred a reporter to the Justice Department’s Office of Public Affairs, which declined to give a statement.

The culture of the office differs vastly from that of the Civil Divison. OLC, with roughly 20 lawyers, provides advice to the government on complex legal and constitutional issues, interprets statutes and mediates legal disputes among agencies.

The Civil Division’s more than 750 lawyers represent the government in federal courts across the country, working closely with the Office of the Associate Attorney General, which oversees the division, and the Office of the Solicitor General, which signs off on all appeals. (The acting head of OLC, David Barron, was a constitutional law professor at Harvard Law School; Tony West, the Assistant Attorney General for the Civil Division, was a litigation partner at Morrison & Foerster in San Francisco.)

In the past, Justice Department offices consulted OLC on pending litigation, if, for example, separation of powers or other constitutional questions arose. But the office shied away from litigation strategy to avoid conflicts and because it lay beyond OLC’s bailiwick, said one former OLC lawyer, who served in the Bush administration.

Butting Heads

OLC’s influence over Guantanamo Bay issues dates back to the Bush administration. The office worked closely with the National Security Division and the Pentagon on the military commissions.

In at least two cases — against Salim Hamdan, Osama bin Laden’s former driver, and Omar Ahmed Khadr, a Canadian citizen accused of killing an American soldier in Afghanistan — OLC lawyers made rare appearances before a military judge.  In pretrial hearings, they argued matters related to the Geneva Conventions, the post-9/11 Authorization for Use of Military Force and the Military Commissions Act. After the issues were briefed and argued, the OLC lawyers faded into the background.

The office, which had enjoyed relative obscurity prior to the Sept. 11 attacks, came to symbolize the Bush administration’s controversial national security policies, having blessed waterboarding, warrantless wiretapping and extraordinary rendition. The office’s work exposed divisions among the Bush administration officials over the legality of the programs, prompting the resignations of senior Justice Department officials.

By the time Bush left office, several OLC opinions had been withdrawn, and the Justice Department’s Office of Professional Responsibility was years into an investigation of former OLC officials John Yoo and Jay Bybee.

OLC in the Obama administration has been more active in Guantanamo Bay matters. Barron and Martin Lederman, an OLC Deputy Assistant Attorney General, were part of Obama’s Justice Department transition team, and they were heavily involved in detainee issues before they were appointed to lead the office, said one lawyer who worked on the transition.

Lederman, like Johnsen, had been a fierce critic of the office’s work during the Bush administration, and his support for habeas rights and positions on indefinite detention were well-known within the department before he returned. (Lederman was an OLC lawyer during the Clinton administration.)

Views are mixed as to whether OLC should be so heavily invested in the Civil Division’s affairs. Some Civil Division attorneys told Main Justice OLC’s work was helpful, because of novel questions raised in the litigation, while others said it amounted to a cumbersome layer of oversight that has strained the relationship between lawyers in the two components.

In a new study, co-authors Benjamin Wittes and Rabea Benhalim of the Brookings Institution and Robert Chesney of the University of Texas Law School appeared to make an argument for OLC’s involvement in describing the significance of the cases:

They are more than a means to decide the fate of the individuals in question. They are also the vehicle for an unprecedented wartime law-making exercise with broad implications for the future. The law established in these cases will in all likelihood govern not merely the Guantánamo detentions themselves but any other detentions around the world over which American courts acquire habeas jurisdiction. What’s more, to the extent that these cases establish substantive and procedural rules governing the application of law-of-war detention powers in general, they could end up impacting detentions far beyond those immediately supervised by the federal courts. They might, in fact, impact superficially-unrelated military activities, such as the planning of operations, the selection of interrogation methods, or even the decision to target individuals with lethal force.

“I’m not sure OLC can be faulted,” said one Civil Division lawyer. “It’s all new. The executive has had to come up with a way of dealing with these cases on the fly.”

But disagreements over the application of the Obama administration’s detention standards, which were devised by OLC, have been a source of friction. (The new standards, introduced in a habeas case in March, dispensed with the Bush administration’s “enemy combatant” designation and declared that Obama’s power to detainee suspected terrorists indefinitely flowed from the 2001 Authorization for Use of Military Force, as informed by law-of-war principles.) Civil Division lawyers chafed at OLC’s insistence that they drop certain legal arguments or abandon their defense in habeas case, the lawyers said.

The Civil Division lawyer said some on the habeas team feel OLC should have withdrawn after crafting the new detention standards, “to be consulted only as need be on resolving some big-ticket items.”

The relationship has steadily improved since the early days of the Obama administration, before the task force charged with determining the fate of Guantanamo Bay detainees hit its stride, the lawyers said. Questions about the government’s position in each case were answered at the task-force level, leaving little room for argument.

“There was a lot more head-butting going on before the task force process got fully underway,” said another Civil Division lawyer. “Now it’s a matter of defending the cases the task force is willing to defend. It has made things go more smoothly.”

The task force, led by prosecutor Matthew Olsen, recommended 35 detainees for prosecution in federal or military courts; at least 110 for release, either immediately or eventually; and nearly 50 for detention without trial.

The habeas cases, however, continue to wind through the U.S. District Court for the District of Columbia. Of the 41 decided habeas cases, 32 of them cut in favor of the detainee.

That number, however, includes 17 Chinese Muslims, known as Uighurs, who were ordered released in the U.S. by a federal judge in 2008. While the Bush administration eventually dropped the Uighurs’ “enemy combatant” designation, meaning the habeas petitions went unchallenged, the Justice Department appealed the release order.

The issue — whether federal judges have the power to release in the U.S. detainees  no longer deemed a threat — is before the Supreme Court. Arguments in the case, Kiyemba v. Obama, are scheduled for March 23.

Monday, August 3rd, 2009

The Obama administration is considering a court-room-within-a-prison complex to house and try suspected terrorists, The Associated Press reported on Sunday. The plans would combine civilian and military detention facilities under one roof, officials told the AP. The operation would be jointly run by the departments of the Defense, Homeland Security and Justice.

Possible sites include the soon-to-be-shuttered state maximum security prison in Michigan and the military penitentiary at Fort Leavenworth, Kan. White House spokesman Ben LaBolt said told the AP that no decisions have been made about the proposal. And The Washington Post reports in today’s paper that the ideas have been debated by an interagency task force examining detention policy but have not moved beyond that stage.

The administration’s plan, three government officials told the AP, calls for following measures:

  • Moving all the Guantanamo detainees to a single U.S. prison. The Justice Department has identified between 60 and 80 who could be prosecuted, either in military or federal criminal courts. The Pentagon would oversee the detainees who would face trial in military tribunals. The Bureau of Prisons, an arm of the Justice Department, would manage defendants in federal courts.
  • Building a court facility within the prison site where military or criminal defendants would be tried. Doing so would create a single venue for almost all the criminal defendants, ending the need to transport them elsewhere in the U.S. for trial.
  • Providing long-term holding cells for a small but still undetermined number of detainees who will not face trial because intelligence and counterterror officials conclude they are too dangerous to risk being freed.
  • Building immigration detention cells for detainees ordered released by courts but still behind bars because countries are unwilling to take them.
Tuesday, July 7th, 2009

The Obama administration is still unsure of what to do with the group of Guantanamo Bay detainees accused of involvement in the September 11 attacks. But government lawyers today said today they’d prefer to prosecute terrorism suspects in civilian courts.

David Kris (Harvard Law)

David Kris (Harvard Law)

Carol Rosenberg, of the The Miami Herald, has this piece on today’s Senate Armed Services Committee hearing, which featured a panel of government lawyers, including David Kris, chief of the Justice Department’s National Security Division. (Click here for his prepared testimony.)  The hearing was held to determine how to amend the Military Commissions Act to make it “Supreme Court proof,” as Rosenberg put it. Chairman Carl Levin (D-Mich.) said the full Senate would take up the legislation next week.

The lawyers told the committee that the Obama administration is still reviewing the constitutional impact of shifting military trials to U.S. soil.

”Military commissions should be a viable, ready alternative for national security reasons for those who violate the laws of war,” Pentagon General Counsel Jeh Johnson said. But, “it is the administration view that when you direct violence on innocent civilians in the continental United States, it may be appropriate that that person be brought to justice in a civilian public forum in the continental United States.”

Kris said military and civilian prosecutors were analysing the proposed commissions prosecutions on a case-by-case basis to see which venue was the best fit.

Johnson, resurrecting a Bush-era policy, said a Guantanamo detainee could be acquitted of a crime by a jury but still be held indefinitely “provided they continue to be a security threat.” He put it on federal judges weighing habeas corpus petitions in the U.S. District Court for the District of Columbia  to decide whether the government could defend indefinite detention, regardless of whether the captives were found innocent of a crime.

Last week, The Wall Street Journal reported that a DOJ task force considering ways to try prisoners by military commission asked the Office of Legal Counsel which constitutional rights, if any, would apply if the trials were held in the U.S.

David Barron, the acting assistant attorney general, wrote in a May 4 memorandum that there is a “serious risk” that federal courts would take a constitutional due process approach when evaluating the trials. While the courts were unlikely to require strict adherence to the Bill of Rights, Barron wrote, they would likely consider the use of coerced statements to punish defendants a violation of due process.