Terrorism Trials & Investigations

Thought #1 on the Holder Statement

By Benjamin Wittes
Monday, April 4, 2011, 4:11 PM

I don't disagree with Eric Holder's complaint regarding the role Congress has played in tying the Executive Branch's hands with respect to bringing the 9/11 conspirators to trial. In fact, I strongly agree with him. It's a grossly inappropriate interference in a core Executive competency.

Having said that, the tone of Holder's comments today seems to me all wrong. He, and the Obama administration generally, still talk as though this administration does not own the policies it is implementing. The detainees are a legacy of the last administration--notwithstanding the litigating positions of this administration. Guantanamo is an illegitimate diplomatic eyesore that must be closed--even though this administration will not close it and relies every day on the legitimacy such statements undermine. Military commissions are an embarrassing cousin of the justice system, another legacy of the last administration--notwithstanding the legislation this administration sought and received enshrining them in law and the fact that it will now use them in this highest-profile of cases.

Eventually, this administration needs to face the fact that these are its policies. Yes, Obama was dealt a bad hand--in part by the last administration. Guess what? Bush was dealt a really bad hand too. It is time for the administration to stop talking in a fashion that delegitimizes the tools it is, in fact, committed to using.

Holder here did not say that military commissions are illegitimate; he said the opposite. But he conveyed something very different. The whole press conference was designed to emphasize that this was not his choice, that Congress made him do it, and that he thinks a federal court trial was the right answer--the one consistent with both our values and our national security needs.

Sorry, I don't buy it. An administration that would not fight for its policy preference, that dawdled so long that it gave the opposition time to rally against its policies, that announced New York as a trial venue and then didn't move any defendants there, that sat on the question for a year without action, and that then would not even threaten a veto of the legislation which now requires this disposition does not get to complain about having its hands forced. It made decisions about what was important to it and what it was willing to fight for: health care, fiscal stimulus, financial reform. It also made decisions about what wasn't important to it and what it wasn't willing to fight for. As much as I agree with Holder about the merits of many of his points, the time to have pushed them is long past. The question now is whether the administration will stop trying to wash its hands of the trial it will, in fact, now conduct.

It is a little metaphor for a huge swath of national security legal policy.