Why is Holder appearance to Congress delayed?

posted at 8:45 am on March 23, 2010 by Ed Morrissey

Byron York notes that the Department of Justice has delayed today’s appearance of Eric Holder to the Senate Judiciary Committee after a “disastrous” hearing earlier this month.  The Attorney General made headlines when he dodged a question regarding the handling of terrorists by claiming that the US would wind up reading Miranda rights to Osama bin Laden’s corpse:

Why? Word is that it’s because of the signing ceremony for the national health care bill, but well-informed Republicans suspect the occasion may also have given Democrats an opportunity to put off what could turn into another embarrassing performance by the attorney general.

Holder’s recent appearance before a House Appropriations subcommittee was a “disaster,” says one Republican. The attorney general’s insistence that Osama bin Laden will never be taken alive and his odd statement about Mirandizing bin Laden’s corpse; his comparison of bin Laden to Charles Manson; his assertion that the 50 minutes spent questioning Christmas Day bomber Umar Farouk Abdulmutallab was a “fairly long period of time” — those and other statements amounted to a blooper reel from just one Holder appearance. In addition, Holder’s testimony made clear that there is still indecision and confusion inside the Obama administration about what to do with 9/11 mastermind Khalid Sheikh Mohammed; postponing Holder’s committee appearance until mid-April gives Team Obama three more weeks to figure out what to do with KSM. “This is about keeping Holder from digging another hole for the administration in a forum where the questioners are better prepared,” says one source.

A source on Capitol Hill confirmed to me that the White House used the ObamaCare signing as their reason to postpone Holder’s appearance at Judiciary.  However, the real reason could be a series of embarrassing admissions in a submission to the committee from the DoJ.  Judiciary had asked for answers on the oft-claimed “hundreds” of terrorists tried in the federal court system, as well as an explanation of how the federal court system can protect national-security information as well as military commissions.  According to this source, the DoJ’s answers confirm exactly what had been suspected — that Holder has not been telling the truth on either point:

In responses submitted to the Judiciary Committee this afternoon, the Department of Justice concedes that military commission trials have better safeguards for protecting classified national security information from leaks than civilian criminal trials.  Although Attorney General Holder has repeatedly testified that civilian criminal trials are just as effective as military commission trials in protecting classified information, even stating that classified information protections in the Military Commissions Act were modeled on the Classified Information Procedures Act (CIPA) used in federal courts, the responses received today (see pp. 29-32) tell a different story.  They acknowledge that the MCA’s classified information protections are better than what is available in federal criminal courts.   In fact, the responses explain how the military commission rules improved upon the civilian criminal rules “to take into account lessons learned in terrorism cases in federal court.”   The Department’s submission to the Committee then details 7 categories of “key differences” between the classified information protections in military commission trials that are not similarly present in the federal criminal law.

A reading of these pages makes clear that the Classified Information Protection Act (CIPA) that would govern federal courts are inferior to the protections provided by military commissions. The DoJ admits this in this passage:

28. Under the Classified Information Protection Act (CIPA), the government may pursue an interlocutory appeal from orders “authorizing the disclosure of classified information . . . or refusing a protective order sought by the United States to prevent the disclosure of classified information.” 18 U.S.C. App. § 7(a). In United States v. Moussaoui, 333 F.3d 509 (4th Cir. 2003), the Fourth Circuit held CIPA did not authorize interlocutory appeals from orders related to the “pretrial disclosure of classified information to the defendant or his attorneys.” Id. at 514.

a. Do you agree that under the Moussaoui decision, the government may not seek immediate review of certain decisions authorizing the pretrial disclosure of classified information? If not, please explain your answer.

Response: In cases involving CIPA within the Fourth Circuit, under the Moussaoui decision, appellate courts lack jurisdiction under CIPA § 7 to entertain an interlocutory appeal by the United States of a district court order allowing a criminal defendant to depose a witness who may possess classified information.

b. Senator Kyl has offered legislation, including an amendment in Committee, to amend CIPA to address the deficiencies in CIPA. Given your decision to try Khalid Sheikh Mohammed and others in federal court, do you support legislation to address gaps in CIPA that could lead to disclosure of classified information?

Response: While CIPA has generally worked well in both protecting classified information and ensuring fair trials, there may be certain portions which could be usefully updated and clarified.The Administration has not yet taken a position on possible legislation to improve CIPA.

Well, why not? If the Obama administration has taken the position that it wants terrorists captured abroad using intelligence assets to be tried in federal court, shouldn’t Obama first take a position on ensuring that vital, sensitive information doesn’t get exposed? That admission is the entire ballgame, and it makes hash of the argument Holder has propounded that there is no difference between the two venues in terms of national security.

As far as the “hundreds” of terrorists tried in federal courts, the DoJ still can’t find any record of them:

According to today’s submission to the Committee, the Department remains unable to provide any detail to explain the claim that hundreds – specifically over 300 – terrorists have been successfully tried in federal civilian criminal courts. Senator Kyl first asked for this information in May 2009. As of yesterday, the Department could only provide the following response: “The Department is working to develop information responsive to this request and will advise the Committee when it becomes available.”

Here’s the specific question and response on pages 32-33 of the submission:

30. In your opening testimony, you stated that “there are more than 300 convicted international and domestic terrorists currently in Bureau of Prisons custody.” In response to my question, you stated without reservation that you would provide the details regarding these convictions.

Please provide the details regarding each of these convictions, including: (a) the names and dates of the individuals convicted; (b) the offense(s) with which they were charged; (c) the offense(s) for which they were convicted; (d) the sentences imposed; and (e) the year the criminal case was instituted via indictment.

Response: The Department is working to develop information responsive to this request and will advise the Committee when it becomes available.

Yeah, get back to us on that, won’t you? After all, you’re only the Department of Justice … which would have been the agency that actually tried those “hundreds” of terrorists, if it happened at all.

Small wonder Holder isn’t keen on reappearing before Judiciary.  If I were him, after fronting these ridiculous claims the first time, I’d be leery about showing my face as well.


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