Andrew McCarthy vs. Atty General Eric Holder -- No Contest

McCarthy by KO.


Not Scared of KSM . . . and Not Worried about McCarthy! [Andy McCarthy]

From today's hearing:

SEN. KYL: Let me just close with this point. You said — and this really bothers me, Mr. Attorney General, with all due respect — "For eight years, justice has been delayed for the victims of the 9/11 attacks." I want to put in the record, Mr. Chairman — ask unanimous consent to insert in the record an article called "Justice Delayed" by Andrew McCarthy.

SEN. LEAHY: Without objection.

SEN. KYL: And I'll just quote two paragraphs from this.

"This is chutzpah writ large," he writes. "The principal reason there were so few military trials is the tireless campaign conducted by leftist lawyers to derail military tribunals by challenge (sic/challenging) them in the courts. Many of those lawyers are now working for the Obama Justice Department. That includes Holder, whose firm, Covington & Burling, volunteered its services" —

ATTY GEN. HOLDER: Hah!

SEN. KYL: — "to at least 18 of America's enemies in lawsuits they brought against the American people."

And it concludes, "Within two years, KSM and four fellow war criminals stood ready to plead guilty and proceed to execution. But then the Obama administration blew into Washington. Want to talk about delay? Obama shut down the commission, despite the jihadists' efforts to conclude it by pleading guilty. Obama's team permitted no movement of (sic/on) the case for 11 months, and now has torpedoed a perfectly valid commission case — despite keeping the commission system for other cases — so that we can instead endure an incredibly expensive and burdensome civil (sic/civilian) trial that will take years to complete."

The witness can surely respond to what I said.

ATTY GEN. HOLDER: I don't even know where to begin — other than to say that, you know, this notion of leftist lawyers somehow prolonging this: The vast majority of the time in which these matters were not brought to trial, to fruition, happened in the prior administration. The Supreme Court — not, I think, a group of leftist lawyers — had concerns about the way in which some of the commissions were — the way in which the commissions were constructed.

The Congress reenacted — and, I think, appropriately so — the way in which the commissions were constructed. This is not a Congress peopled only with leftist lawyers, as Mr. McCarthy would say. So, you know, that makes for nice rhetoric and it makes for, you know, good, I guess, fodder on the talk shows and all of that stuff, you know, but I'm here to talk about facts and evidence, real American values, and not the kinds of polemics that he seems prone to — seems prone to. So, you know, that's — I'm not worried about Mr. McCarthy.


Can the AG Keep His Story Straight? [Andy McCarthy]

It's hard to when you're making it up as you go along.

In yesterday's exchange with Senator Kyl, while giving the back of the hand to my claim that leftist lawyers had derailed the Military Commissions Act of 2006, Attorney General Eric "Real American Values" Holder argued that it was the Supreme Court — "not, I think, a group of leftist lawyers" — who had "had concerns" about the way the military commissions "were constructed." Of course, it wasn't the full Supreme Court that had "concerns" in the 2006 Hamdan case — it was Justices Stevens, Souter, Ginsberg and Breyer (i.e., the Court's leftist bloc), joined by Justice Kennedy (who tends to vault left when the issue is whether the judiciary can impose new restraints on executive power). Hamdan was represented by Neal Katyal, now the Deputy Solicitor General in the Obama Justice Department. Katyal, who is a very able lawyer, began his legal career clerking for Justice Breyer, after a stint clerking on the Second Circuit for Judge Guido Calabresi, one of the most left-wing jurists in the U.S. And here's a rundown of the numerous legal briefs filed in the case. You can judge for yourself whether I accurately described the major opposition to the MCA as leftist lawyers.

But here's the thing. Yesterday, the AG went on to say that after Hamdan was decided in June 2006, "The Congress reenacted — and, I think, appropriately so — the way in which the commissions were constructed." (Emphasis added.) But he didn't "think" it was "appropriately so" at the time. As I've argued, the ink was not yet dry on the MCA when the detainees (several of whom have been represented by Holder's old firm and by other Obama DOJ lawyers) marched en masse into federal court to challenge the MCA as unconstitutional. And in June 2008, speaking as an Obama campaign adviser at the left-leaning American Constitution Society, Holder inveighed that the Bush administration had "secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution."

Now that he's actually had his Department endorse many of the policies he then condemned, I wonder if the Attorney General would agree that his June '08 speech was a tad polemical?


How Hard Can AG Holder Have Studied The KSM Question? [Andy McCarthy]

Attorney General Holder's exchange with Senator Lindsey Graham yesterday has, quite appropriately, gotten lots of attention. I want to drill down for a moment, though, on one element of it. The lawyer's stock in trade is precedent. Whether you're a prosecutor or any other lawyer faced with a policy question, the first thing you want to know is what the law says on the subject: Has this come up before? Are there prior cases on point? What have the courts had to say? Those are the first-order questions — always.

Here's the relevant transcript:

SEN. GRAHAM: Yeah, nor do I. But here's my concern. Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

ATTY GEN. HOLDER: [ACM: LONG PAUSE] I don't know. I'd have to look at that. I think that, you know, the determination I've made —

SEN. GRAHAM: We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no.

ATTY GEN. HOLDER: Well, I think —

SEN. GRAHAM: ... The Ghailani case — he was indicted for the Cole bombing before 9/11. And I didn't object to it going into federal court. But I'm telling you right now. We're making history and we're making bad history.

How could Holder possibly not know the answer to this fundamental question — how could he, in fact, be stumped by it. If he studied and agonized over this decision as he says he did, this would have been the first issue he'd have considered: the fact that there was no legal precedent for what he wanted to do. Or, put another way, if there was a single case that supported Holder's decision, it would have been the only case we'd have been hearing about — from DOJ, the academy, and the media — for the last ten months.

Of course, if, as I've suggested, this is a political decision rather than a legal one, it would make perfect sense that the Attorney General wasn't up to speed on legal precedent. The law isn't what's driving this train.