Watching this video, you can’t help but wonder if Eric Holder gave much thought to the decision:
How could Holder not know the answer to this question?
The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over — to the CIA, the FBI or military intelligence — for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.
Smitty points out that Graham knows and understands the Law of War.
Holder simply doesn’t.
1. If, as between civilian trials and military commissions, there is no real difference in the degree to which national defense secrets are protected, why does the Justice Department apply a protocol which asserts that the “protection of intelligence sources and methods” will be different in the two systems?
2. If the evidentiary rules in the two systems are virtual mirror images, why does DOJ apply a protocol that says evidence that is admissible in one system may not be admissible in the other? And, since Holder claims the government has an easier time proving its case in civilian court, can he identify a single category of evidence that is admissible in civilian court but not in a military tribunal?
On number 2, here’s a hint: One of the major attacks on the military commissions, advanced by lawyers like those in Holder’s firm who volunteered their services to the enemy, was that military commissions permitted too much hearsay and, potentially, evidence obtained by “torture.” They argued that the government should be required to prove its case under what they insisted were the more demanding standards that govern civilian trials.
And not to be missed, John Hinderaker goes into the “rule of law” argument: Obama and Holder both flunk on that, too.
But hey, the trial will be on in time for the next presidential election, won’t it?