Holder's Brief.

Prior to becoming attorney general, Eric Holder held public views that were to the right of the ones he holds now. He believed that placing suspected terrorists in the criminal justice system might compromise intelligence gathering. He wrote as much in a brief submitted in the Rumsfeld v. Padilla case, in which he writes:

[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.

Dana Perino and Bill Burck, who have spent the last couple of months fudging national-security questions over at National Review, have presented this as a kind of trump card proving that trying terrorists in the criminal-justice system is a bad idea. They don't have any harsh words for their boss, but this is of a piece with the larger conservative attempt to revise history and erase the more than 100 terrorist cases tried in civilian courts during the Bush administration from public memory. The deviation between the Bush administration post-2006 and the Obama administration is minimal.

At issue is the fact that Holder didn't disclose the above briefing during his confirmation hearing, which is an oversight worthy of criticism. However, Burck and Perino aren't happy merely making that argument -- they have to fudge the conclusions of U.S. courts in order to justify their belief that the government can hold anyone, anywhere, indefinitely, merely on suspicion of terrorism.

The briefs help to explain a great deal about Holder’s approach to KSM and Abdulmutallab, and detainee policy more broadly. The briefs provide insight into why Holder has refused to acknowledge that Abdulmutallab could have been lawfully detained as an enemy combatant. Holder has insisted for weeks that there is substantial legal doubt on this score because Abdulmutallab was caught in the U.S., not in a recognized battle zone. His position ignores the court-of-appeals ruling in the Padilla case, which held that a U.S. citizen captured on U.S. soil may be detained as an enemy combatant. That decision is still good law — but Holder appears to discount it; after all, he supported Padilla. He prefers the earlier ruling of a different court of appeals, which sided with Padilla, even though that ruling was vacated by the Supreme Court.

The Supreme Court dismissed Padilla's habeas petition -- it didn't rule in favor of the idea that the government can detain someone captured on U.S. soil indefinitely without trial. In fact, the Bush administration moved Padilla into the criminal-justice system precisely to avoid a confrontation with the Supreme Court on this point, which Burck and Perino misleadingly suggest is settled law. The Obama administration did the same thing with Ali Saleh al-Marri, a foreign citizen who was in the U.S. legally and was detained for nearly seven years in a military brig. They were justifiably afraid that they would get stomped in court, just like their predecessors. Civil-liberties advocates wanted this fight, and they were denied it.

So it really isn't clear that the U.S. could have held Abdulmutallab that way. In fact it likely would have set up the very same kind of epic constitutional confrontation that both Bush and Obama have desperately tried to avoid.

Not only that, but in terms of collecting intelligence, precedent suggests holding Abdulmutallab this way would have been a bad idea. Padilla gave the U.S. scratch zero in terms of intelligence while he was detained in military custody, and al-Marri didn't start talking until he was taken out of the brig. According to the Charleston Post and Courier:

A day after he took office, President Barack Obama reversed the Bush administration's enemy combatant stance and ordered al-Marri transferred from military custody to the courts. Before al-Marri agreed to plead guilty, al-Marri sat with investigators for hours, Savage said. In this less-threatening setting, al-Marri verified some of the government's accusations against him and steered the government away from errors in its intelligence.

Maybe Holder is being reckless. Or maybe, having considered the two examples in which the U.S. held someone captured on American soil as an enemy combatant and got nothing out of it, he simply changed his mind.

At any rate, as I've pointed out before, Holder's current view, that access to an attorney doesn't impede intelligence gathering, isn't that unusual. It was the view of former Attorney General Michael Mukasey when he was a federal judge ruling on the Padilla case. Mukasey said of Padilla's access to an attorney, “The interference with interrogation would be minimal or nonexistent.” Since then, Mukasey's changed his mind. But no Republicans -- certainly not Perino or Burck -- found this to be a dangerous view during Mukasey's confirmation several years ago. It's a credit to the GOP media operation that they managed to get Politico to write a whole article on this subject without mentioning that.

The more disturbing part of Burck's and Perino's reasoning is the aspersions they cast on Holder's notion that some level of risk of terrorist attack is acceptable in order to respect the law. The logical conclusion of their argument is that Perino and Burck think that some level of "absolute safety" can be achieved and would be a desirable state of affairs, if we just ignored the law all together. American public servants swear an oath to protect the Constitution and not the people of the United States in order to avoid the monstrous acts that would be otherwise justified in the name of "security."

Perino and Burck, like Obama, rhetorically reject the "false choice" between liberty and security. But only because they seem to believe that there's no contest -- they'd give up freedom for security in a heartbeat.

-- A. Serwer

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