Terrorism Trials: Military Commissions

A Possible Alternative Explanation for Eric Holder's Action in Al Bahlul

By Benjamin Wittes
Monday, January 14, 2013, 9:53 PM

An informed observer in the executive branch writes in response to Bobby and my post of earlier today on Eric Holder's decision to continue the appeal in Al Bahlul:

Let me offer for your consideration an alternative explanation for the Department of Justice’s actions.  Let us assume that Eric Holder is not channeling his inner David Addington but his inner David Cole---in fact, Eric is much more inclined that way, as you know.  So this version of Eric happens to agree with the result in Hamdan and that it should be applied to Bahlul.  But he is also acutely aware that he is the designated punching bag for conservative Republicans, especially on national security issues, and that if he were to make a decision to walk away from a conviction already obtained in military commissions, he, and the President, will be hammered. His Solicitor General has advised him that DOJ is highly likely to lose the appeal.  Mightn’t he conclude that taking the appeal, defending the conviction, and having John Roberts and Nino Scalia say that he is wrong is preferable---both in his own personal interest and in maximizing the legitimacy of that result---and is a better route to the same outcome?

I have no idea whether or not this was Eric’s reasoning, but it strikes me as plausible.  Sometimes you have to take appeals because it’s better to have a court tell you no.