In the face of potential legislation that would stop funds from being used to prosecute former Guantanamo Bay detainees in civilian courts, Attorney General Eric Holder and Secretary of Defense Robert Gates have addressed a letter to House Majority Leader Nancy Pelosi and House Minority Leader John Boehner defending the executive branch's authority to choose the venue for the prosecution of terror suspects.
The exercise of prosecutorial discretion has always been and should remain an Executive branch function. We believe it would be unwise and would set a dangerous precedent for Congress to restrict the discretion of our Departments to carry out specific terrorism prosecutions.
Indeed, we have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes.
Holder had previously written an aggressive defense of the administration's handling of terrorism in a letter addressed to Senate Minority Leader Mitch McConnell. The fact that Gates joined with this letter may help blunt criticism that the administration hasn't been making these decisions with input from defense authorities as well as law enforcement.
From what I've heard, the issue of separation of powers also has some moderates in Congress uneasy about supporting a bill that would micromanage the executive branch's prosecutorial discretion.
-- A. Serwer