Holder's Lame Victory

Posted: May 15, 2011 12:01 AM
Holder's Lame Victory

I want to see Eric Holder’s subpoena for the intelligence data collected at the assassination site of Osama bin Laden in Pakistan. Holder says that the data is a “treasure trove” of information that he’s busy going through in order to keep America safe.

I want to see the judicial ruling Barack Obama used for ordering the death sentence to be carried out on bin Laden that Holder has ruled lawful.

I don’t want to talk about these things as a part of a legal theory. I want to actually see them, and hold them in my hand, because people’s lives- citizens’ lives- and their careers are at stake.  

“As the whole of America takes a bin Laden victory lap,” writes Daniel Henninger in  Wall Street Journal, “let us pause to remember some of this celebrated event's most forgotten men: the Central Intelligence Agency officers who sit under the cloud of a criminal investigation begun in 2009 by Attorney General Eric Holder into their interrogations of captured terrorists.”

Under Eric Holder’s view of the law, at least as he expressed it a few weeks ago when he reluctantly gave up the idea of trying terrorists in civilian court, bin Laden had the right to remain silent.

He had the right to an attorney, Holder said. If he could not afford an attorney he had the right to have one appointed for him. He lectured Congress about all this.

Eric Holder just told bin Laden a few weeks ago, in a public press conference, furthermore, that he had the right to have his attorney present when he was being questioned.

Apparently in the interim, however, Holder changed his mind. Maybe he just came up lame trying to keep up with his boss’ victory lap.

Perhaps he changed his mind because if the prosecution of the CIA officials goes forward, Holder will be bound to add Obama to the list to be prosecuted if he wishes the legal theory he has been advancing to remain consistent. 

Under Holder’s view, terrorists should be treated just like criminals. In fact, Holder’s theory, as expressed a few weeks ago, says that we had no right to be on Pakistani soil to begin with.

“If it were a law enforcement operation,” legal scholar John Yoo told me “we would have needed the Pakistani's permission. Which I am sure we didn't have.”

Everything after that had to be illegal under Holder’s system, then.        

“I too wonder whether Holder thinks that the information from the bin Laden compound is admissible in court,” says Yoo “and even whether his legal advisers are certain that bin Laden's killing was legal.”

Yoo, who is a Professor of Law at UC Berkeley, has an unusual interest in the topic because he authored the Bush-era legal memo that gave the CIA authority to use enhanced interrogation techniques on terror suspects.

Some credit those techniques with helping find bin Laden, including Obama's own CIA chief Leon Panetta.  

But Yoo wouldn’t call Holder a hypocrite for his volte-face: “I would say that he has contradicted his unrealistic promises from his first year in office,” Yoo concluded magnanimously.

I wish I could be so sure.

This is an administration that has changed its story on the bin Laden raid 26 times in less than 48 hours.

I’m worried that one branch of the government will be giving out Silver Stars to Navy Seals while another branch will be handing them life sentences on the Dry Tortugas.

“If bin Laden was unarmed, human rights groups will argue that his killing was an extrajudicial assassination,” says Yoo “and that instead he should have been arrested and brought back for trial.  This seems to me to have been the view that Holder was taking too- but that idea fell quickly when it was put to the test of actually killing bin Laden.”

If so, good for Holder. But why stop there?

It’s time to let the idea of prosecuting the CIA officers fall through too.

It’s time for them have their victory lap.

They’ve earned it.

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