- The Washington Times - Thursday, December 9, 2010

Attorney General Eric H. Holder Jr. on Thursday said congressional efforts to prohibit the transfer of detainees from Guantanamo Bay, Cuba, to the United States for any purpose, including to stand trial, “would unwisely restrict” the government’s ability to prosecute terrorism suspects.

At a news conference and in separate letters to Senate Majority Leader Harry Reid and Senate Minority Leader Mitch McConnell, Mr. Holder said the ban — contained in a 2011 year-end spending bill approved by the House on Wednesday — would “undermine” his ability to prosecute cases, “thereby taking away one of our most potent weapons in the fight against terrorism.”

“It would therefore be unwise and would set a dangerous precedent with serious implications for the impartial administration of justice for Congress to restrict the discretion of the executive branch to prosecute terrorists in these venues,” he said. “The exercise of prosecutorial discretion has always been and must remain an executive branch function.”

Mr. Holder said the ban “went well beyond existing law” and, in order to protect the American people as effectively as possible, “we must be in a position to use every lawful instrument of national power to ensure that terrorists are brought to justice and can no longer threaten American lives.”

Current law allows the Justice Department to bring detainees to this country for trial as long as the department gives Congress 45 days’ notice of the transfer. The new congressional ban is included in a hastily approved year-end spending bill passed by the House on Wednesday by a 212-206 vote that blocks the administration from spending money on a replacement prison or any prisoner transfers.

If the measure becomes law, it would represent a major setback for President Obama, who in one of his first acts in office vowed to close the U.S. military prison at U.S. Naval Base Guantanamo Bay, Cuba.

Mr. Holder has long advocated the trying of terrorism suspects in U.S. civilian courts, suggesting last year that Khalid Shaikh Mohammed, the self-proclaimed mastermind of the Sept. 11 attacks on the World Trade Center and the Pentagon, and four of his alleged co-conspirators would be tried in federal civilian court in New York City. At the time, he called the decision part of an ongoing process to close the prison at Guantanamo Bay, where they are being held.

Republican lawmakers and other conservatives, including former Attorney General Michael B. Mukasey, criticized the move as reckless and dangerous.

The proposal got another jolt in November when a jury in New York acquitted suspected al Qaeda terrorist Ahmed Khalfan Ghailani on all but one of 285 charges — including every murder count — in the 1998 bombings of U.S. embassies in Africa that killed 223 people and injured more than 4,000. Ghailani was transferred from Guantanamo in June 2009 to stand trial in New York, the first Guantanamo detainee to be tried in the civilian court.

He was found guilty of one count of conspiracy and faces 20 years to life in prison when sentenced. Mr. Holder’s office had ruled out the death penalty in the case.

On Thursday, Mr. Holder said the bill eliminates the Obama administration’s ability to hold accountable those “who have committed mass murder” against U.S. citizens. He described the spending bill as an “extreme and risky encroachment” on the authority of the executive branch to determine when and where to prosecute terrorist suspects.

He also said such decisions should be based on the “facts and circumstances of each case and the overall national security interests of the United States.”

In his letter to Mr. Reid, Nevada Democrat, and Mr. McConnell, Kentucky Republican, Mr. Holder said Mr. Obama, as commander in chief, had determined that the prosecution of terrorism suspects in federal courts in the United States for the criminal terrorism offenses Congress has enacted should be available to protect the nation.

He described the process as “a powerful and well-established tool that has been used successfully in hundreds of cases.”

Mr. Holder also said the Justice Department had been unable to identify any parallel in the history of the nation in which Congress had intervened to prohibit the prosecution of particular persons or crimes. He said it would be “a mistake to tie the hands of the president and his national security advisers now.”

On moving Guantanamo detainees to the U.S. to stand trial, Rep. Peter T. King, New York Republican and ranking member of the House Committee on Homeland Security, said when the plan was announced last year, “Now that Khalid Shaikh Mohammed, the worst of the worst, and his fellow terrorists are set to be moved to New York, what is the president’s plan to keep Lower Manhattan and all our communities safe?

“Unfortunately, Congress and the American people were never allowed a role in this debate,” Mr. King said. “This is an upsetting pattern for an administration that promised an unprecedented level of transparency.”

Mr. Mukasey had called the move a return to a “Sept. 10, 2001, criminal justice model,” saying it was a “decision I consider to be not only unwise, but in fact based on a refusal to face the fact that what we are involved with here is a war with people who follow a religiously based ideology that calls on them to kill us.”

Faced with growing opposition, the Obama administration decided to review its trial plans for detainees.

The spending bill is already two months overdue as Democrats struggle to find ways to balance their policy preferences with the deteriorating fiscal condition of the government. It now heads to the Senate, which is working on its own version of legislation to keep the government funded for the rest of fiscal 2011.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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