In a letter to Majority Leader Harry Reid and Republican Senate Minority Leader Mitch McConnell, Attorney General Eric Holder strongly criticized a section of continuing resolution passed by the House yesterday that would prohibit federal funds from being used to prosecute Gitmo detainees in federal criminal courts. Saying he was "unable to identify any parallel in the history of our nation" in which Congress has "intervened to prohibit the prosecution of particular persons or crimes."
Section 1116 is an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects. Such decisions should be based on the facts and cicumstances of each case and the overall security interests of the United States. Section 1116 would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism.
How Section 1116 got into the resolution remains something of a mystery, although its wording resembles several previously unsuccessful amendments to various bills. “The net effect is to shut down the ability of the president to use federal criminal courts, for the 9/11 defendants or anybody else,” said ACLU Senior Legislative Counsel Chris Anders.
Whether the ban stays depends on the Senate. The resolution may be replaced by an omnibus spending bill, in which case the language would likely be removed. But it's remarkable that the section made it in at all given that Democrats retain control of the House until next year, and this episode may be a preview of what's to come when the Republicans take over. It's easy to imagine this as part of a future "hostage situation" where Republicans refuse to vote for spending bills unless they manage to ban federal trials for Gitmo detainees.
Again, Holder's right that no president would willingly acquiesce to Congress micromanaging their prosecutorial decisions. And when Bush was in office, no Republican would have imagined proposing it.
