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Ron Radosh

In his State of the Union Address, President Barack Obama skirted gingerly and quickly over the vital issue of national security policy, and how our country will address it. He gave boilerplate attention to the overriding issue of whether the United States and its European allies will do anything meaningful to stop Iran from gaining nuclear weapons, aside from once again saying that Iran must be stopped. While the President said all Americans stand united in protection of our national security, he said nothing about the growing debate over whether Khalid Sheikh Mohammed and the four other 9/11 terrorists should be tried in civilian court in New York City, and on the scandal brewing over the failure to adequately interrogate Umar Farouk Abdul Mutallab after his failed attempt to bring down Northwest Flight 253 on Christmas Day.

Let us reflect for one moment on what we have learned the past few days about what appears to be a short 50 minute interrogation before Mutallab was read his Miranda rights, and hence became silent as he prepared to lawyer up. While the administration claims the FBI learned whatever he knew about beforehand, others have received reports that in fact, the severely burned and incoherent Mutallab was unable to provide much information. Moreover, in the recent Senate hearings, it was made clear that none of our nation’s top national security personnel, including National Intelligence chief  Dennis Blair, Homeland Security Director Janet Napolitano and Counterrrorism Center director Michael Leiter, were consulted about how to proceed. Nor were orders given to have Mutallab interrogated by a new agency created for just such events, the HIG- or High-Value Detainee Interrogation Group.

Now, Newsweek’s top intelligence correspondent, Michael Isikoff,  has challenged their testimony. Iskioff says that in fact, Leiter and Obama’s counterrorism advisor, John Brennan, held a telephone conference call and a Justice Department lawyer briefed them and told them that Mutallab would be indicted on criminal charges the next day. Iskikoff writes:

Neither Leiter nor any of the other participants, including representatives from the FBI and the CIA, raised any questions about the Justice Department’s plans to charge the suspect in federal court, the officials said.  “If you participate in a conference call and you don’t raise any objections, that suggests you were consulted,” said one senior law-enforcement official. Another added that “nobody at any point” raised any objections, either during the meeting or during a four-hour period afterward when Abdul Mutallab was informed of his Miranda rights to be represented by a lawyer.

When administration officials were queried about this by Iskikoff, administration spokesman meekly replied that they were “informed” about the decision but not “consulted” about it. In other words, they indeed knew what the administration’s course of action would be, and said nothing at all to indicate any opposition. Rather than admit this before the Senate Intelligence Committee, the responsible officials preferred to obfuscate by engaging in semantic wordplay.

All indication is, in fact, that the decision to proceed with a criminal indictment, as well as that of trying the five Al Qaeda prisoners in a criminal court in NYC, rather than before a military tribunal, came from Attorney General Eric Holder. All of this raises an important question. Congressional Republicans, and some Democrats, are making it clear that they will urge Congress not to vote funds to hold a trial in New York, and yesterday, Mayor Michael Bloomberg changed his mind and officially stated that the trial, if held, should take place elsewhere and not in the city he presides over as its chief executive.

Although Bloomberg said he hoped that Holder and the President would change their minds, little indication exists that they will. This raises two important political and constitutional questions: Is the decision to try them as criminals rather than as prisoners of war legal, and are those who made this decision to be held accountable? If it is not legal, and if it was indeed Eric Holder’s decision, is this an impeachable offense?

The case for impeachment of Eric Holder has been made boldly and forcefully by a friend and colleague, the distinguished economic historian of recent America, Martin J. Sklar.  He has done so in a Memo on the issue of War and the Law that he has been privately circulating.  He has given me permission to summarize and quote from what I consider to be a compelling case.

Written in mid and late November, Sklar’s argument holds up even more so given recent developments. His premise is that POWs are subject to the laws of war, and not to the civil or criminal law of the detaining country or government.  If they are put on trial, they may not be tried in civilian courts, but only in military tribunals in accordance with the laws of war. As we know, this is indeed the course followed by FDR during World War II. As Morris Davis, chief US Military Commission prosecutor at Guantanamo, wrote in The Wall Street Journal in November of 2009,  the classification of defendants as POWs rather than criminal defendants is consistent with Geneva Convention requirements.  As he explained, “Military commissions satisfy the requirements of the Geneva Conventions, which are the source of the detainees’ rights. The rights in federal courts surpass the Geneva Conventions requirements and give detainees more than their status and the law demand.”

First, Sklar argues that neither the President nor the Attorney General has given any adequate reason why the five Al Qaeda defendants are any different than those who are going to be tried in tribunals.  Moreover, the claim of both that civilian juries will find them guilty, so there is nothing to worry about, is of course prejudicial in itself and makes a mockery of any civilian trial, in which defendants are considered innocent until proven guilty. Of course, we already know in advance that they were guilty. As Sklar concludes on this issue, the statements of both Holder and President Obama “compromise the integrity of the judicial procedure, and may place it in a disruptive jeopardy.”

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