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Claim and Fact: Claims Regarding Attorney General Holder's
2/3/10 Letter to Senators on Abdulmutallab

CLAIM: Attorney General Holder's claim that he made the decision to treat the Christmas Day bomber as a civilian criminal "with the knowledge of, and with no objection from, all other relevant departments of the government" stands in stark contrast to the testimony of Homeland Security Secretary Napolitano, Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and FBI Director Robert Mueller, all of whom said they were not consulted on the decision.

FACT: The decision to charge Abdulmutallab in federal court was made with the knowledge of, and with no objection from, all other relevant departments of the government. Representatives ofother parts of the intelligence community were contacted by the FBI promptly after Abdulmutallab's apprehension, were specifically advised that criminal charges would be filed, and voiced no objection. Moreover, asWhite House Press Secretary Robert Gibbs made clear in his February 1 press briefing, at a meeting with the President on January 5, with the heads of all of the relevant agencies and departments present, the Attorney General advised that Abdulmutallab was to be indicted the next day - and no one voiced any objections or concerns about that approach.

Most importantly, noagency has since objected in public or in private to the Department of Justice about this approach nor expressed the view that the Department did not take, or is not taking, the proper measures to protect our national security, obtain any relevant information thisindividual may have, and ensure that Abdulmutallab is brought to justice.

CLAIM: The Attorney General's letter is inconsistent. He writes that the last administration arrested and detained every terrorist suspect apprehended in the U.S. under federal criminal law "without a single exception." But further in the letter he cites both the Padilla and al Marricases, in which President Bush ordered terror suspects who were captured in the U.S. transferred into military custody. These two statements cannot be reconciled.

FACT: There is no contradiction here. Both Padilla and Al Marri werearrested and detained through the criminal justice system - via material witness warrants initially, and, for Al Marri, eventually with a criminal indictment. It was only weeksormany monthsafter the initialcriminalarrests/detentions -and only after both individuals had obtained counsel and courtproceedings were under way - that the decision was made totransfer them into law of war detention. Notably, both individuals were eventually transferred back to criminal detention and were successfully prosecutedunder the criminal justice system.

CLAIM: In his letter, the Attorney General cites the Second Circuit's ruling in the Padilla case without mentioning that the Supreme Court reversed that decision on jurisdictional grounds. He cites the holding of the reversed Second Circuit decision-that the President lacks the authority to detain a U.S. citizen as an enemy combatant on U.S. soil-without mentioning that the Supreme Court ruled one year later, in Hamdi v. Rumsfeld, that "[t]here is no bar to this Nation's holding one of its own citizens as an enemy combatant… A citizen, no less than an alien, can be "part of or supporting forces hostile to the United States or coalition partners" and "engaged in an armed conflict against the United States," … "such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict." Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004).

FACT: The Padilla decision was reversed, but only because thehabeas petition was filed in the wrong court.The Supreme Court did not reverse the Second Circuit's decision on the merits. The jurisdictional issue does not detract from the pointmade in the Attorney General's February 3 letter: the Second Circuit found Padilla's detention unlawful.

Furthermore, a review of the actual opinions in both Padilla and Al Marrireinforces the substantive pointin the Attorney General'sFebruary 3 letter: Padilla's and Al Marri'sdetention under the law of war raised serious statutory and constitutional questionsin the courtsconcerning the lawfulness of the government's actions. Indeed, the reversal of the Second Circuit'sdecisionin Padilla on jurisdictional groundswas itself only by a closely dividedSupreme Court; the majority through Chief Justice Rehnquist went out of their way to note thatthey were not ruling on the merits, whichthey said raised issues that "are indisputably of ‘profound importance'" (but needed to be properly before the court before they could be considered). Rumsfeld v. Padilla, 542 U.S. 426, 450 (2004).  Fourother Supreme Courtjusticesexpressly notedtheir view that the AUMF "does not authorize . . . the protracted, incommunicado detention of American citizens arrested in the United States." 542 U.S. at 464 n. 8 (Stevens, J., dissenting, joined by Souter, Ginsberg, & Breyer, JJ.).

Lest this be considereda weighty legal issue solelyfor U.S. citizens(because Padilla was a U.S. citizen), Al-Marri was not a citizen - and yet, asthe AttorneyGeneral noted inhis letter - the Fourth Circuitexpressed widely varying views on the question of the lawfulness of placing him in law of war detention. The initial panel held that Al-Marri's detention was unlawful. Al Marri v. Puciarelli, 487 F. 3d 160 (4th Cir. 2007). On rehearing en banc, this decision was reversed on a 5-4 split vote, resulting in eight separateopinions, and themajority of judges still found that Al Marri had not been afforded adequate due process to challenge his detention.Al Marri v. Pucciarelli, 534 F.3d 213 (4th Cir. 2008), judgment vacated and appeal dismissed as moot, Al Marri v. Spagone, 129 S. Ct. 1545 (2009).The Supreme Court vacated this decisionas moot after Al Marriwas transferred back to the criminal justice system.

No single opinion in Al Marri commanded a majority of the court. Even those who believed that Al Marri's detention was lawful emphasized that "military detention of American citizens or aliens lawfully within this country is a huge step. It is a mistake to take this step without asking where the journey leads"and "while we have a constitutional preferencefor traditional criminal proceedings, the prosecution of many terror suspects presents unprecedentedchallenges. Conversely, while the ability to detain avoids many of the problems inherent in the criminal justice system, the threat to liberty presented by executive detention commands that it be carefully circumscribed. The choice of which path to take is anything but easy. . . ." See Opinion of Judge Wilkinson.

In neither case has the Supreme Court ruled on the complex legal issuesraised by detaining individuals lawfully present and apprehended in the United States under the law of war.Few legal scholars would suggest that the Government's authority to detain someone pursuant to the law of war in the United States is as simple and clear as proponents make it seem.

In fact, theargument thatthe issue has been definitively resolved by the Supreme Court in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) is wrong. In that case, the Supreme Court upheld the law of war detention of a U.S. citizencaptured on the battlefield in Afghanistanwhile fighting for the Taliban.The Courtexpressly limited its holding to "a United States citizen captured in a foreign combat zone." Detention of individuals apprehended in the United Statesunder very different circumstances presents profoundly different legal issues. If it did not, the Fourth Circuit would not have had to issue eight different and lengthy conflicting opinions in the Al Marri case, decidedwell after Hamdi.

CLAIM: In his discussion of Miranda warnings and the right to counsel in interrogation, the Attorney General cites the Padilla case to suggest that the government could not have held the Christmas Day bomber as an enemy combatant without affording him the same right to counsel. Specifically, he cites a ruling by then-judge Michael Mukasey, who subsequently became Attorney General, requiring that Jose Padilla be given access to a lawyer. That is a misrepresentation of the situation. Judge Mukasey didn't grant Padilla a lawyer as part of his arrest or interrogation. He granted Padilla a lawyer much later when he was filing a petition for habeas corpus to challenge the legality of his detention, and eventually he was appointed one -- but not the night of his arrest.

FACT: This is an incorrect accounting of the timeline of Padilla's detention. As noted above, Padilla was originally arrested on a material witness warrant issued by Judge Mukasey. Within one week of his arrest, the court appointed counsel to represent him.It was weeks later, after his court-appointed counsel moved to vacate the material witness warrant, that President Bushfirst designated Padilla as an enemy combatant and transferred him from New York to a military brig in South Carolina. At that point, the government attempted to deny Padilla access to his counsel, whothen filed a habeas petition on his behalf, and Judge Mukasey held that Padilla had a right tocontinue to be represented by counsel for the habeas proceedings.

Significantly,Judge Mukaseyexplicitly rejected the Government's arguments that granting Padilla access to counsel for the purposes of contesting the factual basis for his detention would "jeopardize the two core purposes of detaining enemy combatants - gathering intelligence about the enemy, and preventing the detainee from aiding in any further attacks against America." Padilla v. Bush, 233 F.Supp. 2d 564, 603 (S.D.N.Y. 2002), reversedin part on other grounds, 352 F.3d 695 (2d Cir. 2003). If the argument is that affording a detainee access to a lawyer will necessarily prevent the government from obtaining important intelligence information (because he will advise his client not to talk), Judge Mukasey appears to have rejected it.

CLAIM: The Attorney General cites the case of Richard Reid, the shoe bomber, who was charged in the civilian criminal system, but fails to acknowledge that there was no military commission system in place at the time of his arrest in December 2001. The military commission system wasn't brought under congressional authorization until 2006.

FACT:  Law of war detention and military commission trials are distinct: law of war detention does not require a military commission trial. Individuals can be placed in law of war detention even if they cannot be tried by a military commission. The fact is that a decision was made to place Reid in the civilian criminal justice system and not in law of war detention - an option which was as available to the Executive Branch then as it is now.  Indeed, even a few months later, when Jose Padilla was transferred from the criminal justice system to law of war detention, Reid stayed in the criminal justice system.

In any event, President Bush had issued a military order establishing military commissions to try non-citizens suspected of being terrorists on November 16, 2001. Richard Reid was arrested on December 16, 2001, and indicted on January 16, 2002 in federal court. The military commissions were therefore (at least theoretically) an option at the time Reid was arrested.

In fact, at the press conference announcing Reid's indictment, Attorney General Ashcroft was asked whether a military tribunal was considered.  Attorney General Ashcroft replied that he had conferred with the Department of Defense and with their general counsel and "they had no objection to our proceeding in this matter" - in criminal court. No explanation was given as to why criminal court was preferred to a military tribunal. Furthermore, the Bush Administration continued to charge many other terrorists in federal court throughout its tenure, including well after the Military Commissions Act was adopted in 2006.

CLAIM: The Attorney General's assertion that the Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges is unsubstantiated, if not outright false.

FACT: In 2008, the Bush Administration submitted a formal budget request to Congress for the Justice Department for Fiscal Year 2009 which unequivocally stated that more than 300 individuals had been convicted of terrorism or terrorism-related violations in federal court since 9/11. The second paragraph of Justice Department budget request specifically stated, "Since 2001, the Department has increased its capacity to investigate terrorism and has identified, disrupted, and dismantled terrorist cells operating in the United States. These efforts have resulted in the securing of 319 convictions or guilty pleas in terrorism or terrorism-related cases arising from investigations conducted primarily after September 11, 2001, and zero terrorist attacks on American soil by foreign nationals from 2003 through 2007." The document further noted that, "Since September 11, 2001, the Department has charged 512 individuals with terrorism or terrorism-related crimes and convicted or obtained guilty pleas in 319 terrorism-related and anti-terrorism cases."