Attorney General Eric Holder testified yesterday before the House Judiciary Committee. As you mght expect, members took the opportunity to press Holder on his views regarding terrorists’ rights. And Holder appears to have given the subject some thought! Fox News reports:
Republicans pressed Holder over recent decisions to prosecute terrorism suspects in civilian courts, and they suggested he intends to treat terrorism suspects as “common criminals.”
Holder said such suggestions tend to “get my blood boiling,” calling them “anything but the truth.”
He said the “apt” comparison is to mass murderers like Charles Manson, who is currently serving a life sentence for orchestrating a killing spree in the 1960s.
Trying to explain the analogy, Holder said mass murderers like Manson still reserve the right to go before a jury and have the charges against them proved beyond a reasonable doubt.
Holder was asked whether that means Usama bin Laden, if captured, would be tried in a civilian court and afforded the same rights as Charles Manson.
“In some ways I think they’re comparable people, in some ways,” Holder said.
More coverage of Holders’ testimony is accessible here, but I haven’t found a transcript of it. In the news reports, Holder appears unwilling or unable to address the legal distinctions among criminal defendants, prisoners of war and unlawful enemy combatants. Here is one key distinction: Only criminal defendants have a right to trial by jury.
Invoking Charles Manson may make for brilliant argument in a college bull session, but are we supposed to take this seriously from the Attorney General of the United States in the midst of a war against an enemy that does not observe any legal norms? The more Holder talks, the more he sounds like a dope.
JOHN adds: Scott’s wish is my command. Here is the colloquy from yesterday’s hearing:
MOLLOHAN: Yes. Finally, Attorney General Holder, there is the concern, or the argument at least, made that holding trials in civilian courts somehow afford detainees too many rights. As a lawyer, I always wondered about those arguments with the — would like very much to hear you speak to that concern.
HOLDER: Well, I’m really glad you asked me that question because that’s one that tends to get my blood boiling. The notion that a defendant in an Article III court is somehow being treated in an inappropriate special way that he’s being coddled is anything but the truth. A person charged with murder, and many of these defendants are, these defendants charged with murder are treated just like any other murder defendant would be.
The comparison to are they getting more rights than the average American citizen is not an apt one. The question is are they being treated as murderers would be treated. And the answer to that question is yes, they have the same rights that a Charles Manson would have, any other kind of mass murderer. Those are the comparisons that people should be making in trying to make the determination about how terrorists are being treated and not compare them to average citizens who create no harm, who have committed no crimes.
CULBERSON: Thank you, Mr. Chairman. And thank you, Mr. Attorney General for appearing before us. In response a moment ago to a question from the chairman, you said that terrorists have the same rights as Charles Manson, correct?
HOLDER: I said that murderers have the same rights as Charles Manson. And if these people are charged with murder in essence that’s — those are the kinds of rights that they would get.
CULBERSON: And terrorists who have murdered U.S. citizens and the approach of your Department of Justice is they have the same rights as Charles Manson?
HOLDER: In the sense that a murder has the right to go before a jury, get the acts that he’s charged with proven beyond a reasonable doubt. Yes.
CULBERSON: So therefore, Osama bin Laden in your opinion has the same rights as Charles Manson?
HOLDER: In some ways I think they’re — they’re comparable people. In some ways…
CULBERSON: That’s incredible. This is where the disconnect between this administration and your mindset is so completely opposite that of where the vast majority of the American people are, where my constituents and I just have a deep seated and profound philosophical difference with the Obama administration, the Department of Justice, the leadership of this Congress. This is war. And in time of war we as a nation have never given constitutional rights to foreign nationals — enemy soldiers certainly captured overseas.
And Senator Lindsey Graham asked you this question. And I know you’ve got time to think about it. At the time he asked the question you couldn’t provide him with example. Could you provide us with an example of when in time of war the United States has ever granted a foreign national captured on a foreign battlefield U.S. constitutional rights? Has that ever happened?
HOLDER: You’re dealing with a situation that is different from anything that we have ever seen before. Different from anything that we’ve ever seen before. We try to analogize this to wars where there were people in uniform, where you had signing ceremonies that ended declarations on that — on — on battleships in — in, you know Tokyo Harbor. That is not the kind of war that we are facing.
And though we try to, you know, analogize the tools, and analogize the rules, they don’t necessarily apply in the same way. What Osama bin Laden is responsible for are both, as I said — and I’ve consistently said — both acts of war, and also criminal acts. And when I was referring to the Charles Manson analogy, that was just to talk about the rights that he had within a courtroom.
I understand we are at war with Al Qaida, and that’s why we have 30,000 additional troops in Afghanistan…
CULBERSON: Right. But…
HOLDER: … is why we have taken all kinds of other measures — some of which I can’t talk about — in Pakistan. We — we’re not fighting this from a law enforcement preventive mode. We are using law enforcement as one of the tools, but…
HOLDER: … we are also using military means to defeat this enemy.
CULBERSON: Which is — which is why you support the Second Circuit Court’s decision on Padilla that the president lacks the authority to detain a U.S. citizen as an enemy combatant on U.S. soil?
HOLDER: I think the courts — that is — that is not clear at this point, that the United States has the ability to, as the president tried to do in that case, hold incommunicado and without a lawyer an American citizen on American soil.
What that brief said was that there are other tools that the executive branch has and that it should make use of in order to effectuate the neutralization, the incapacitation of that person, as opposed to simply locking them away and not giving them a lawyer.
HOLDER: Again, we’re talking about American citizens on American soil.
CULBERSON: Right. The key is, you said the president has other tools. The president is the commander in chief. And this is where the profound disconnect comes between where America is and where you are in this administration and where this leadership of the Congress is.
HOLDER: I would disagree with the characterization…
HOLDER: … there is a split between America and the leadership of this administration.
CULBERSON: There — there really is, because you saw it, I think, in the Massachusetts election. This was one of the key issues in the election of Scott Brown is even the voters of Massachusetts, as liberal and different in their philosophical views as they are from my constituents in Texas, even the voters of Massachusetts understand that Osama bin Laden does not have the same rights as Charles Manson, as you have just stated.
Is your — your opinion that they…
HOLDER: I said that they only have the same rights within a courtroom.
CULBERSON: Right. Well granting Osama bin Laden the right to appear in a U.S. courtroom, you are clothing Osama bin Laden with the protections of the U.S. Constitution. That’s unavoidable, and something that you’ve skipped right past.
HOLDER: Let’s deal with reality…
CULBERSON: And it’s giving constitutional rights to enemy soldiers that is the profound problem, sir.
HOLDER: Let me — you’re talking about a hypothetical that will never occur. The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom.
CULBERSON: But it is…
HOLDER: That’s a reality. That’s a reality.
CULBERSON: But it’s clearly your position and the position of this administration that on a — that you believe, on a case-by-case basis, that — and your tendency would be to grant constitutional rights to enemy soldiers captured on foreign battlefields.
Has that ever been done before in U.S. history?
CULBERSON: At a time of war?
HOLDER: Well, I assume that you are a supporter of military commissions. Is that correct?
CULBERSON: Absolutely. In a time of war, yes, sir, I support what the U.S. Supreme Court affirmed when those German terrorists were captured, as Mr. Wolf said, on U.S. soil — they were let off on the beaches of Florida and Long Island.
HOLDER: Well, even in those military commissions, those people are given constitutional rights, are they not?
CULBERSON: Well, they are in a military commission not clothed with all of the protections of the U.S. Constitution. They are treated by the military as enemy combatants, captured at time of war.
And the question is, as…
HOLDER: But they’re not put up against the wall and shot. They have the ability to confront those who accuse them. They have the rights to lawyers.
HOLDER: They have many of the same constitutional rights…
CULBERSON: … severely restricted rights in the military tribunal. Is the problem, we’re at war, and you don’t seem to recognize that we are at war, just as though we were at war with the Germans in World War II, but the — the people we’re fighting are such cowards, they clothe themselves as women and hide behind children and hide in mosques, as they did in — in the Gaza Strip, as they do in attacking us.
And it is the president’s responsibility, as commander in chief, to protect the country. And the president’s granted great discretion by the U.S. Supreme Court in — as commander in chief deciding when and where to try these people.
It was President Roosevelt’s decision that the German terrorists be tried in a military tribunal. It was President Bush — and not given the full protection of the Constitution. It was President Bush’s decision that foreign nationals captured on foreign battlefields not be tried in civilian court and given the full protection of the Constitution.
Because we’re at war. And time lost in interrogating these people means lives lost. And it is the — it is one of the principal reasons, actually, when you look at why Scott Brown won his race, it’s not only because the people of Massachusetts opposed the president’s health care plan but because this administration consistently — and here, once again, today, we now learn that you think Osama bin Laden is — should be given the same rights as Charles Manson in a court of law.
And that’s just not acceptable to the people that I represent, to the people of America. And it represents a just profoundly different approach that’s never been done before in the history of the country.
HOLDER: What I have — what we have said and what I have said is that on a case-by-case basis you make the determination of where you can bring the strongest case — where will I have the greatest chance of success?
There are things that you can do in Article III courts that you cannot do in military commissions. You cannot have, for instance, cooperation agreements. You don’t — that does not exist in a military commission.
We have the ability to incarcerate people for extended periods of time.
HOLDER: And one only has to look at what has happened through the use of the Article III courts over the course of the past year and to see the plots that we’ve broken up, the intelligence that we have gathered…
CULBERSON: Yes, sir.
HOLDER: … and that has allowed our military to be more effective in the field.
Is Holder a dope? We report, you decide.
UPDATE: Gen. Stanley McChrystal, taken aback by Holder’s assurance that bin Laden will be shot on sight, told reporters that our goal is still to capture him alive:
When McChrystal was asked whether the U.S. had given up on capturing bin Laden alive, he said, “Wow, no.”
If bin Laden enters Afghanistan, “we would certainly go after trying to capture him alive and bring him to justice,” McChrystal told Pentagon reporters from Kabul. “I think that is something that is understood by everyone,” he said.
Almost everyone, I guess.