Centrist and right-of-center national security experts reacted with contempt to Attorney General Eric Holder’s claim at a legal convention that the courts are the nation’s “most effective terror-fighting weapon.”
“That’s utter nonsense … it is simply lunatic,” said Ralph Peters, military analyst, author and former soldier. In the war against the jihadis, he said, the courts “have been totally ineffective when they’re not outright destructive.”
“He’s unconsciously shilling for his own profession,” said Michael Rubin, a Middle East expert at the American Enterprise Institute. “Holder, like many ambitious bureaucrats, wants to build a bureaucratic empire … [and] by doing so, he will get Americans killed.”
On Sunday, Republican Senate Leader Mitch McConnell added his voice to the criticism. “The attorney general said the other night our biggest weapon in the war on terror was the U.S. civilian court system,” he said on CBS’ Face The Nation. “ I don’t know what planet he’s living on.”
Holder’s declaration came in a Thursday speech to hundreds of progressive lawyers, advocates, judges and students gathered at the American Constitution Society’s annual gala. “I know that – in distant countries, and within our own borders – there are people intent on, and actively plotting to, kill Americans,” he told his legal peers in the enthusiastic audience. “Victory and security will not come easily, and they won’t come at all if we adhere to a rigid ideology, adopt a narrow methodology, or abandon our most effective terror-fighting weapon – our Article III [civil] court system,” he declared to much applause.
Holder delivered his speech several months after Congress and public opinion defeated his two-year political campaigns to transfer five captured Al Qaeda leaders from the military’s legal commissions to the legal profession’s civilian courts, and to close the military’s Guantanamo Bay terrorist detention facility.
At the lawyers’ convention, Holder called for an advocacy campaign that would give civil lawyers the lead role in the struggle against the jihadis. “We cannot – and we must not – allow the public safety concerns that all Americans share to divide us … we must ensure that the rule of law … must be recognized as the foundation for our continued security,” he said.
“Achieving this goal is our collective responsibility. And it must become our common cause,” he declared to his fellow lawyers.
“Holder thinks that lawyers should run even military operations, which has led us to a world where his prosecutors and investigators think it is their job to second-guess time-pressured military and intelligence decisions,” said John Yoo, a lawyer in George W. Bush’s administration who developed rules for treating jihadis captured by soldiers. One consequence of that overreach, he wrote in an article for the June 19 Washington Post, was the death in 2005 of 19 U.S. soldiers after they released an Afghan shepherd rather than hold him as a prisoner. The shepherd guided Taliban fighters back to the soldiers’ location, and 19 soldiers were killed in the resulting gunfight.
In his speech, Holder did not address the failure of the civilian legal system in 2001 to stop the 9/11 jihadis. In the months before they destroyed the Twin Towers and killed 3,000 Americans, the 19 Middle Eastern jihadis walked past U.S. customs officers, immigration officials, traffic cops, and airport security guards.
Nor did Holder acknowledge the military’s prominent role in the campaign against overseas jihadis since 2001. The jihadis, who are motivated by their interpretation of the 1,400 year-old Islamic ideology, have attacked U.S. and its allies in Africa, Europe and Asia, usually from regions in Afghanistan, Pakistan, Yemen or Indonesia where American law and lawyers are not welcomed.
The U.S. military does successfully disrupt and defeat many Al Qaeda plans to attack the United States. However, lawyers can only act after evidence is gathered, said Rubin. “If Holder was the point man on the war against terrorism, then many more Americans would have to die to defeat our enemies,” he added.
“We’re not going to be able to arrest our way out of the problems overseas,” said Frank Cilluffo, director of George Washington University’s Homeland Security Policy Institute.
Holder, who heads the Department of Justice, also avoided any mention of the successful killing in May of Osama bin Laden at his Pakistani villa by 23 U.S. soldiers, an interpreter and a dog. The killing came 10 years after President George W. Bush had declared “whether we bring our enemies to justice or bring justice to our enemies, justice will be done,” and it was directed by Holder’s boss, President Barack Obama, who announced May 2 that “justice is done.”
“If Osama bin Laden were alive today I think he would say our biggest weapon was U.S. Navy SEALs,” McConnell said on Sunday.
Since 2009, Obama has increased the use of missile-armed drones to kill jihadis in countries not at war with the United States. The drones have killed numerous jihadis — and, inadvertently, civilians — in Iraq, Afghanistan, Pakistan, Yemen and Somalia.
Holder did concede, in passing, that the military contributes to the nation’s defense against jihadis. “Without civilian law enforcement and Article III courts, our ability … to punish those who have – and who intend to – harm Americans would be seriously damaged,” he said. The phrase, “seriously damaged,” implies that some anti-jihad ability would survive if the civil court system had no role.
There are few mainstream advocates, and no draft legislation, that would exclude civil law-enforcement and the civil-courts from the task of countering U.S.-based jihadis, such as the jihadi who tried to explode a car-bomb in New York in May 2010.
But Holder’s ambitious agenda has prompted a push-back from diverse advocates on the right and center-right. McConnell argued Sunday that foreign jihadis caught in the United States should be put under military law, not Holder’s legal sector. “Foreigners are not entitled to be tried in the U.S. court system,” he said on the CBS interview. McConnell cited the arrest of two immigrants from the Middle East who are now facing jihad-related charges in his home state of Kentucky, and said “they got into this country as a mistake.”
“The nation has begun to ‘find our footing once again,’” Yoo said in a statement to TheDC. “But there is still much more damage that [Holder’s] Justice Department has done — such as the ongoing persecution of CIA officers who produced the intelligence that led to the killing of Osama bin Laden — which can only be reversed once this Attorney General has left office,” said Yoo.
Holders’ speech was “a nonsensical crowd-pleasing statement to a roomful of lawyers,” said Peters. “Politicians routinely tell their audiences that nobody is more important,” he said, and they do win their applause because “the human capacity for self-deception is enormous, whether it is in the local rotary club, or in a roomful of soldiers or of assembly-line workers.”
Such “pandering is selfish … [because] Holder gets support from these guys and these guys get to bask in the warm glow of his flattery … That is business-as-usual in Washington,” he said.