Justice Denied

Speaking of Eric Holder, there's no one better qualified to discuss the administration's disastrous decision to bring KSM to New York than Andrew McCarthy. McCarthy was the Assistant U.S. Attorney for the Southern District of New York who put the Blind Sheikh Omar Abdel-Rahman in jail for his part in the 1993 World Trade Center bombing. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).

He wrote the following for National Review Online. I enjoyed hearing Senator John Kyl read from it at length to AG Holder at the senate hearing on Wednesday.

Justice Delayed

Holder’s friends in the al-Qaeda bar caused the trial delays he now criticizes.

By Andrew C. McCarthy

Of all the infuriating aspects of the decision to transfer five 9/11 war criminals to civilian federal court, the one that grates most is the contention that the Obama administration is finally moving forward after “eight years of delay” — as Attorney General Eric Holder put it at his Friday press conference — during which the Bush administration managed to complete only three military-commission trials.

This is chutzpah writ large. The principal reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals by challenging them in the courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & Burling, volunteered its services to at least 18 of America’s enemies in lawsuits they brought against the American people. (During 2007 alone, Covington contributed more than 3,000 hours of free, top-flight legal assistance to our enemy detainees.)

Almost from the moment President Bush authorized military commissions in 2001, this legion of litigators flooded the courts with habeas corpus petitions, contending that military detention and trials violated the Constitution, the Uniform Code of Military Justice, and the Geneva Conventions. In 2004, the al-Qaeda bar induced the Supreme Court, in Rasul v. Bush, to grant enemies a statutory habeas corpus right to challenge their military detention in civilian court. Congress tried to stop them by amending the habeas statute to divest the lower federal courts of jurisdiction in these lawsuits, but the al-Qaeda bar later persuaded the liberal bloc on the Court to ignore that amendment.

In 2006, in Hamdan v. Rumsfeld, our enemies’ lawyers persuaded the Court’s liberal bloc to invalidate the military commissions on the ground that they had been prescribed by the president rather than by Congress. This rationale was (a) disingenuous, because Congress had implicitly approved military tribunals in the 2005 Detainee Treatment Act, (b) legally untenable, inasmuch as presidentially authorized commissions have a long history in the United States, and (c) practically pointless: Since Congress already had implicitly approved the commissions, it was no surprise when it then explicitly approved the commissions in the 2006 Military Commissions Act. In terms of delay, however, the damage was done. The military commissions that had been convened up to that point — and delayed by continuous litigation — had to be started all over again under the new congressionally authorized system.

As night follows day, the al-Qaeda bar immediately went to work attacking the new commission system. Simultaneously, the terrorists’ volunteer lawyers worked to undermine Congress’s narrowing of their statutory habeas corpus rights by claiming the combatants had a constitutional right to seek civilian federal court review of their military detention. In the disastrous 2008 Boumediene v. Bush decision, the Supreme Court’s liberal bloc again went along with the leftist lawyers for the enemy. Armed with that victory, the lawyers redoubled their efforts, using the new Boumediene ruling (which only applied to detention, not to commission trials) as a basis to argue, again, that the military-commission system was invalid.

It was well into 2008 when the lower courts finally ruled that Boumediene did not invalidate the commissions. At that point, in the eleventh hour of its second term, the Bush administration was able to push ahead and get some commissions done. In the interim, however, Boumediene meant that more than 200 detainee cases were dumped on the lower federal courts with no guidance about how to proceed.

Attorney General Michael Mukasey pleaded with Congress to enact rules to make the process more orderly, but Democrats turned a deaf ear. Like the al-Qaeda bar, they wanted to maximize due-process rights for the enemy but didn’t want to be held politically responsible for doing so. What better way to thread that needle than to sit on their hands while federal judges — who are insulated from voters — made up procedural rules as they went along? At the urging of the enemies’ lawyers, those judges are treating combatant-detention hearings as if they were full-blown trials and ordering the release of trained terrorists who should be detained.

It is mind-boggling that the delay in completing commission trials would be derided by Eric Holder, a lawyer whose firm is among those responsible for the litigation-driven delay that became a lawfare triumph for al-Qaeda. Holder and his comrades did everything they could do to undermine the commission system, both in legal motions and in public appearances accusing the Bush administration of torture, war crimes, and disregard for the legal rights of terrorists.

And exactly when would Holder have had Khalid Sheikh Mohammed be tried? We did not gain custody of him until his capture by the Pakstanis in 2003. After that, years were taken to break him in our attempt to extract the full breadth of his knowledge of al-Qaeda’s players and plans, and to exploit that intelligence to save lives. KSM was submitted to a military commission in 2006 — shortly after Holder’s colleagues in the al-Qaeda bar got the commission system invalidated in Hamdan.

Yet, within two years (i.e., in less time than most civilian terrorism cases), KSM and four fellow war criminals stood ready to plead guilty and proceed to execution. But then the Obama administration blew into Washington. Want to talk about delay? Obama shut down the commission despite the jihadists’ efforts to conclude it by pleading guilty. Obama’s team permitted no movement on the case for eleven months and now has torpedoed a perfectly valid commission case — despite keeping the commission system for other cases — so that we can instead endure an incredibly expensive and burdensome civilian trial that will take years to complete.

How many years? Terrorists bombed the U.S. embassies in 1998. It took three years to bring four of them to trial. (There would have been a fifth, but the civilian system failed to detain him securely: He maimed a prison guard during an escape attempt and was never brought to trial for the bombings.) The embassy-bombing trial took seven months to complete and failed to result in death sentences for the two capital defendants. Guess when the appeal was decided? Just a few months ago — eleven years after the attacks and eight years after the trial. The convictions were upheld by the appellate court, so now we move on to the Supreme Court. Once that’s done, they’ll have a couple of years to relitigate their trial and sentences by filing habeas corpus motions.

But it’s good to hear we’re finally ending all this unseemly delay.
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