Free Press Editor
Ok, you say, if you journalists know so much, sort out these confusing two stories and spin from Democrats and Republicans on the whole Attorney General Eric Holder letter to Republicans on the Christmas Day bombing attempt case.
Republicans say Holder, and by extension Obama, are weak on terrorists, and should've treated the Nigerian kid as enemy combatant, no miranda rights, no lawyers. Holder, in a five page letter issued Wednesday, says he was doing exactly the same thing as Bush did in over 300 cases, including Richard Reid the shoe bomber, who, according to Holder's letter, was read his rights within five minutes, and advised of them four times in the next 48 hours. (Facts you really can't make up even if you wanted to. There are records that document this kind of stuff)
National Review, a right leaning magazine, argues there were two exceptions in Bush actions and Obama could've made the case for an exception.
The Review's facts were referenced by Powerline, a right leaning blog. Here's Powerline's take.
I've read the Holder letter, I've read the Powerline blog on this, pointing to the two exceptions, which are actually from the National Review. Check out what they said here.
Holder actually explains the exceptions, and notes they still had lawyers.
Here's the explanation on the two cases from Holder's letter:
"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."
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."
The Powerline and National Review blogs show these exceptions, but they make no case other than to say there were two exceptions. Their main argument seems to be there were exceptions. Two out of 300. They don't note the result of those cases, as Holder does above.
In my humble opinion, the arguments on the two exceptions don't hold water in trying to say Holder could have held the Christmas Day bomber as an enemy combatant. And the critics raise questions of their own. Why not shoe bomber Reid under Bush? Why wasn't he treated as enemy combatant?
Leaders of both parties, clearly used federal criminal law, not wartime enemy combatant law in very, very similar terrorism cases, and in the overwhelming majority of all terrorism cases.
Apparently, the Christmas Day bomber also has been talking, because the FBI got his parents to get him to talk. They apparently were doubtful torture would've worked here. The FBI and every intelligence agency was consulted on weather to hold him as enemy combatant. None, according to Holder, thought this would be effective in getting him to talk.
Intelligence briefing with reporters Tuesday night confirmed he was supplying "actionable" information.
Anyone out there see an argument that refutes the case I've made, I'm open to investigating it. That's what trained and professional journalists do. And we have a bunch of them.
UPDATE FEB. 5 : National Review columnist Andrew C. McCarthy takes issue with Holders assertions in a rather long piece, that is mostly opinion.
He gets close to a real challenge saying some in other "relevant" security agencies were not consulted, in direct contradiction to Holder. He says these folks testified before Congress to that affect, but doesn't name them or provide a link.
He contends, like others, that Holder's statement that Bush administration did same thing as he did in these cases 300 times "without exception." McCarthy challenges that, noting "exceptions" in the Holder letter.
A careful reading of McCarthy and the letter, however, show Holder was talking initial "arrest and detain" while McCarthy speaks of the cases in the ultimate way they were treated.
He gets into a lot of legal case recitation after that. Good luck sorting that out for truth.
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