Eric Holder

  • November 13, 2009
    Attorney General Eric Holder Jr. announced this morning that the Department of Justice will prosecute some suspected terrorists, held at the Guantánamo Bay military prison, in federal court.

    Holder said at a press briefing that Khalid Shaikh Mohammed and four other men, "accused of conspiring to commit the 9/11 attacks" will be prosecuted in federal court. Holder said that Abd al-Rahim al-Nashiri and four other military detainees charged with the 2000 "terrorist attack on the USS Cole," will be prosecuted before a military commission.

    "I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years," Holder said. "The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures."

    Holder continued, "I want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties. Federal rules allow us to seek the death penalty for capital offenses, and while we will review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators."

    Holder's announcement drew mostly favorable comment from civil liberties groups that have opposed the use of military commissions.

    Human Rights First hailed the "decision to move the trials of the 5 Guantanamo detainees accused in the 9/11 conspiracy from the discredited Guantanamo military commissions and into federal courts to face justice."

    The American Civil Liberties Union called the action a "major victory for due process and the rule of law," but also criticized the administration for continuing "to use the illegitimate military commissions system to prosecute some Guantánamo detainees, including the defendant accused in the attack on the U.S.S. Cole."

  • November 3, 2009
    Attorney General Eric Holder and Secretary of Defense Robert Gates are opposing a bill that would block the Justice Department from prosecuting detainees at the Guantanamo Bay military prison in U.S. courts, reports The Associated Press. The news service says the administration officials stated in an Oct. 30 letter that they want the option of prosecuting detainees in military or civilian courts. Sens. Lindsey Graham, John McCain and Joe Lieberman are pushing the legislative measure that would bar the Justice Department from spending funds on prosecuting detainees in U.S. Courts.

    ABC News correspondent Jake Tapper also reports on his Political Punch blog that the administration will announce within the next couple of weeks "the names of detainees in Guantanamo Bay whom federal prosecutors plan on trying in U.S. civilian courts and which ones they will send to a military commission." In a recent guest post for ACSblog, Eric Montalvo, senior litigation counsel at Tully Rinckey PLLC in Washington, D.C. and a former Marine Corps Judge Advocate (JAG), examines the use of military commissions, saying that they "do not present defendants with a meaningful opportunity to challenge the bases of the detention." 

  • October 19, 2009

    Attorney General Eric Holder has announced that the Department of Justice does not consider it a priority to prosecute patients and distributors who are in "clear and unambiguous" compliance with state laws that allow for medical marijuana use.

    "This action ... reflects the clear sea change taking place, both domestically and especially internationally, regarding drug policy," writes Glenn Greenwald at Salon. "When Mexico decriminalized drugs for 'personal use' in August, the silence -- including from Washington -- was deafening[.]"

    Domestically, one may also note the recent introduction of legislation in the Senate which would end the sentencing disparity for possession of crack and powder cocaine. The minimum sentences for the same amount of the two drugs currently bears a 100:1 ratio which disproportionately affects African Americans. Companion legislation has already been introduced in the House and the Obama administration has voiced support for eliminating the disparity.

    ACS has published articles and blog posts related to debate over drug policy, including an Issue Brief by Professor Alex Kreit called Toward a Public Health Approach to Drug Policy, and guest blog posts by San Francisco District Attorney Kamala Harris and When Brute Force Fails author Professor Mark Kleiman.

  • September 23, 2009
    The Department of Justice (DOJ) has issued new procedures on when the government employs the state secrets privilege in litigation involving national security issues. The new policy, reports The Washington Post, would require government agencies such as the CIA to "convince the attorney general and a team of Justice Department lawyers that the release of the sensitive information would present significant harm to ‘national defense or foreign relations.'"

    In a statement announcing the policy, Attorney General Eric Holder said, "This policy is an important step toward rebuilding the public's trust in the government's use of this privilege while recognizing the imperative need to protect national security. It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."

    Holder also states that the DOJ is committed to ensuring that the state secrets privilege is not used "for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials."

    In a recent guest article for ACSblog, Professor Amanda Frost critiqued the Obama administration's use of the state secrets privilege, saying it was too similar to that of its predecessor and concluded that Congress should pass legislation to limit the privilege. For more discussion of the state secrets privilege, see video of the ACS event, "The State Secrets Privilege: Time for Reform?"

    The Bush and Obama administrations have drawn criticism for invoking the privilege to scuttle litigation over national security policy including rendition and warrantless spying, The Post reports. Some lawmakers, such as Sen. Patrick Leahy, have promoted legislation that would limit the privilege.

    Adam Serwer writes on Tapped that the new policy falls "well short of the standards that would be set by Senator Leahy's bill, but they seem more rigorous than I would have expected ...." Serwer concludes that the "guidelines are certainly better than I would have expected from the preliminary reports, but we'll see if they satisfy the senators sponsoring the state secrets bill. Leahy gave some positive feedback, (he also takes credit for some of the changes) but he didn't say that he would abandon the bill."

  • August 28, 2009

    More OLC Memos:  "The Office of Legal Counsel, responding to a Freedom of Information Act request, has now released a treasure trove of new memoranda discussing the Bush Administration's war on terror policies," writes Prof. Jack Balkin at Balkinization. "The highlights include memos by Jack Goldsmith telling the CIA not to do anymore waterboarding in May of 2004, and a memo by his successor at the OLC, Daniel Levin, telling the CIA they can go ahead and do it on August 6, 2004. There are also two memoranda from John Yoo arguing for the President's right to use military force at any time without congressional approval and offering CIA interrogators a good faith defense to torture."

    Dick Cheney is Mad:  From Christy Hardin Smith: "Why is Cheney so irate? Because bluster gets him column inches without having any real fear of direct questions of his own involvement. Why? Because that just isn't how things are done in the Beltway. No inconvenient truths that might rock your access boat."

    Torture Doesn't Work, So ...  Richard Haas, president of the Council of Foreign Relations, is being held to account for what he said during an interview on Morning Joe, including this line: "I really think putting this in legal channels as opposed to just the policy channels is something, just like the politics, we as a society, will regret. We need to look at all of our tools. We may reject some of these things. Let's say on balance they're not worth it. But other things we may say to do it given who we're up against."

    "I'm with Jack Bauer on this one."  That's the quote from Fox's Chris Wallace. Here's the clip