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Sessions Calls Holder Letter a 'Failure'
Thursday, February 4, 2010
“This letter, in terms of accuracy and professionalism, fails. We’re entitled to better than this.”
WASHINGTON—During today’s meeting of the Senate Judiciary Committee, Ranking Member Jeff Sessions (R-AL) responded to Attorney General Eric Holder’s letter, sent yesterday, which for the first time stated that Holder was the one who decided to mirandize the Christmas Bomber and that he fully stands by this decision. Holder’s letter follows repeated inquiries from Sessions and numerous other Senators on the handling of the Christmas Bomber, including a request from all seven Judiciary Republicans for the Attorney General to testify.
An excerpt of the Sessions’ remarks follows:
“The Attorney General’s response was disappointing to me, for a lot of reasons.
“Although Attorney General Holder admitted he made the decision to treat the Christmas Day bomber as a civilian criminal, he also made the remarkable claim that his decision was made “with the knowledge of, and with no objection from, all other relevant departments of the government.” This statement stands in stark contrast to the testimony of Homeland Security Secretary Napolitano, Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and FBI Director Robert Mueller, all of whom said they were not consulted on the decision. And in fact, it does appear from the letter, if you read it carefully, that the decision was made before they were notified. It had already been made and a lawyer had already been appointed and he’d clammed up.
“Aside from contradicting other officials, the letter is also inherently inconsistent. The Attorney General writes that the last administration arrested and detained every terrorist suspect apprehended in the U.S. under federal criminal law “without a single exception.” But he also cites, further on in his disjointed letter, both the Padilla and al Marri cases where President Bush ordered terror suspects who were captured in the U.S. transferred into military custody. These two statements cannot be reconciled.
“It gets worse. He cites the Second Circuit’s ruling in the Padilla case without mentioning that the Supreme Court reversed that decision on jurisdictional grounds.
“He cites the holding of the reversed Second Circuit decision—that the President lacks the authority to detain a U.S. citizen as an enemy combatant on U.S. soil—without mentioning that the Supreme Court ruled one year later, in Hamdi v. Rumsfeld, that “[t]here is no bar to this Nation's holding one of its own citizens as an enemy combatant… A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” … “such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.” Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004).
“So that’s the Supreme Court’s final decision on this. I don’t believe an appellate judge would be very happy if any lawyer misquoted authority to that extent.
“In his discussion of Miranda warnings and the right to counsel in interrogation, he cites the Padilla case again to suggest that the government could not have held the Christmas Day bomber as an enemy combatant without affording him the same right to counsel. Specifically, he cites a ruling by then-judge Michael Mukasey, who subsequently became Attorney General, requiring that Jose Padilla be given access to a lawyer. That is a misrepresentation of the situation. He never acknowledges that he is comparing apples to oranges. Judge Mukasey didn’t grant Padilla a lawyer as part of his arrest or interrogation. He granted Padilla a lawyer much later when he was filing a petition for habeas corpus to challenge the legality of his detention, and eventually he was appointed one. But not the night of his arrest.
“He cites how Richard Reid, the shoe bomber, was charged in the civilian criminal system, but fails to acknowledge that there was no military commission system in place at the time of his arrest in December 2001. The military commission system wasn’t brought under congressional authorization until 2006, when we passed legislation to do that.
“And he again cites the unsubstantiated claim that “300 individuals were convicted of terrorism-related charges” in the Bush administration. As if this was the policy of the Bush Administration. Since May 2009, Senator Kyl and I have been asking the Attorney General to explain the basis for this most questionable claim. To date, we have received no response to our repeated requests (made again in June 2009 and November 2009) for this information. If this figure is valid, why is the Attorney General not willing to explain it? Do these cases involve allegations of international terrorism comparable to the Christmas Bomber or Khalid Sheikh Mohammad? Or are they cases dealing with contributions deemed to be illegal, or matters of that nature.
“I want to have confidence in the Attorney General. But he needs to be accurate when he responds to our questions. I think this letter, in terms of accuracy and professionalism, fails. We’re entitled to better than this. We’ve asked the Chairman to invite the Attorney General to testify this month. The Chairman wrote me yesterday and said he would invite the Attorney General to testify in March. But that’s the overall oversight hearing and I really think we need to have a national discussion about all of this.”
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