Wednesday, February 3, 2010
Attorney General Eric Holder today wrote to Senator Mitch McConnell defending the Justice Department's use of the regular criminal justice system--and not military tribunals--to arrest, detain, charge, and try Umar Farouk Abdulmutallab in connection with his attempted bombing of Northwest flight 253 near Detroit on December 25, 2009.
The letter is largely a political response to criticism of the administration for using the regular criminal justice system and Article III courts instead of military tribunals for suspected terrorists. But Holder includes a couple paragraphs on Constitutional issues related to detention and interrogation of terrorist suspects, defending current policies in part because they are consistent with past practice (of the Bush administration).
Here's a sample related to detention authority and what Holder calls "law of war" custody:
Since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. . . .
In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war. Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant. Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later. In both of these cases, the transfer to law of war custody raised serious statutory and constitutional questions in the courts concerning the lawfulness of the government's actions and spawned lengthy litigation. In Mr. Padilla's case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war. In Mr. Al-Marri's case, the United States Court of Appeals for the Fourth Circuit reversed a prior panel decision and found in a fractured en banc opinion that the President did have authority to detain Mr. Al Marri, but that he had not been afforded sufficient process to challenge his designation as an enemy combatant. Ultimately both Al-Marri (in 2009) and Padilla (in 2006) were returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.
Letter at 2-3 (emphasis in original). We covered Al-Marri's case most recently here.
Here's a sample related to detention authority of "enemy combatants":
Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government's legal authority to do so is far from clear. In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney . . . .
Letter at 5.