Holder: Aiding al-Qaeda

by Andrew McCarthy July 13, 2010

Eric Holder is chief among the many Obama Justice Department lawyers who, during the Bush years, donated their services as private attorneys for the benefit of al-Qaeda terrorists. His motive was to frustrate efforts to treat our wartime enemies as just that: wartime enemies. He preferred the failed law-enforcement model that regards our enemies as garden-variety criminals - the counterterrorism approach he had overseen as deputy attorney general while America was serially attacked during the Clinton years.

Nothing has changed. As the Obama administration's attorney general, Holder is still gratuitously taking positions that help the likes of 9/11 mastermind Khalid Sheikh Mohammed. Witness his baffling suggestion this weekend that it would be better to try KSM and five other 9/11 plotters in civilian court because of the purported legal uncertainty about whether guilty pleas are permissible in military death-penalty cases.

To be clear, I am not contending that the attorney general approves of terrorists or that his purpose is to help them. I am saying that Holder is in the thrall of an ideology, the inevitable effect of which is to aid our enemies. This progressive ideology, shared by many legal elites, holds that the use of military legal processes during military conflicts - processes to which the United States has resorted throughout our history - is somehow a greater danger to us than international terrorism itself.

The attorney general would doubtless like to see al-Qaeda chieftains convicted and executed, but only if it is done on his own terms. That means using civilian courts, regardless of whether this rewards the terrorists who have committed the worst atrocities with valuable due-process advantages; betrays the underlying imperative of international humanitarian law to protect civilians from being targeted for attacks; and makes it more difficult to convict and execute war criminals.

The attorney general's latest claims are grossly misleading. First, he asserts that guilty pleas are permitted in civilian capital cases - as if to imply that only in military courts must we have burdensome trials in which juries must approve the death penalty. Try telling that one to the Moussaoui jury.

At his civilian trial in Virginia, Zacharias Moussaoui did plead guilty to participation in the 9/11 plot. But that plea did not end the case. Under federal law, capital cases are bifurcated: Even if a defendant admits guilt, the issue of punishment must still be tried to the jury. Holder conveniently elides mention not only of this fact but of the history of capital punishment in civilian international-terrorism cases. In the 16 years since the federal death penalty was restored in 1994 - 16 years throughout which the United States has been ravaged by jihadist terror - the Justice Department has approved capital charges for exactly three defendants: Moussaoui and two of the 1998 U.S. embassy bombers. In each case, civilian juries rejected the death penalty. If Holder is saying there's a better chance these savages will be executed if they are tried in the civilian system (and that is precisely what he's implying), there is nothing to support that claim.

Second, the claim Holder floats that guilty pleas may not be permissible in capital military-commission cases is meritless. Holder did not explain his theory, but we can speculate that he is referring to a suggestion spun last year in a New York Times report. The paper intimated that federal law might be ambiguous on whether guilty pleas were allowed. Positing that "military law" is the "model for the military commission rules," the Times report pointed out that, in courts martial for members of our armed forces, guilty pleas are prohibited in capital cases. Prosecutors must prove guilt even if a soldier wants to plead guilty. The Times, which is resolutely anti-death penalty, added that this was to "ensure fairness."


Nice try. Military commissions are not courts martial, even though it has been a project of the Left - when it is not trying to endow our terrorist enemies with all the rights of American civilians - to vest them with the same legal protections our law gives to American soldiers. Commissions, moreover, do not take place pursuant to the "model" of military law, the Uniform Code of Military Justice (UCMJ). Instead, they are governed by a special statute, the Military Commissions Act (MCA).

Unlike the UCMJ, the MCA provides no bar to guilty pleas in capital cases. To the contrary, MCA Section 949i(b) states that when an accused pleads guilty to "any charge or specification" (capital charges are not mentioned, much less exempted), a finding of guilt "may be entered immediately without a full vote" of the commission. At that point, the commission moves on to consider sentencing. A different MCA provision, Section 949m, directs that commission members must be unanimous in imposing death.

So where are Holder and the Times getting the idea that guilty pleas are not permitted? They are obviously relying on a portion of Section 949m that says an accused may not be sentenced to death unless he is "convicted of the [capital] offense by the concurrence of all the [commission] members[.]" But that provision is plainly talking about what happens when an accused pleads not guilty, necessitating a trial. It is not silently undertaking to supersede the aforementioned Sec. 949i(b), which separately governs guilty pleas.

As the attorney general knows, this is the way civilian rules are construed, too. That is, there are separate provisions governing trials and guilty pleas: The fact that federal criminal procedure Rule 31 says jury verdicts must always be unanimous does not mean jury determinations of guilt are always required. Instead, a different provision, Rule 11, outlines the procedures to be followed when a defendant decides to plead guilty.

It is an elementary canon of construction that, where possible, congressional statutes should be read in harmony, not as if they were at war with one another. Reading the provisions that way, one easily sees that in capital military-commission cases, just as in civilian death-penalty cases, Congress intended to bifurcate determinations of guilt and sentencing. If the accused insists on a trial, then he may not be executed unless the commission (or jury) is unanimous: first, on the question of guilt, and, second, on the question of death. If, by contrast, the accused wishes to plead guilty, he may do so, but that resolves only the issue of guilt; there must still be a sentencing phase at which the commission (or jury), after hearing evidence and argument, may impose death only if its verdict is unanimous.

Furthermore, Holder is now the attorney general. He is no longer at liberty to freelance for terrorists - his client is the United States, which is at war with terrorists pursuant to a congressional authorization approved with overwhelming bipartisan support. His client is not the foreign terrorists: KSM already has plenty of lawyers. Holder's client is the American public (i.e., the people KSM wants to kill). Thus, while Holder may not like military commissions, he is obliged to make them work, just as any attorney general who disagrees, as a private citizen, with the policy behind a given law is duty-b


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