Eric Holder Thanks John McCain and Lindsay Graham: KSM comes to New York

 In Eric Holder’s speech announcing that he was bringing Khalid Sheik Mohammed, and five other terrorists to New York City, New York City, (he said it twice) for criminal trials, he thanked Senators John McCain and Lindsay Graham for passing legislation to “strengthen” and “reform” the military commission system. See videos below.

Republican Senators receiving a thank you from Eric Holder is the stuff of nightmares. I can see Holder smugly inserting McCain and Graham into his text, knowing the conservative angst that would follow.

Carl Levin (D-MI) the Chairman of the Senate Armed Services Committee introduced an amendment to the National Defense Authorization Act for Fiscal Year 2010. John McCain (R-AZ) is the ranking Republican member. Lindsay Graham (R-SC) sits on the committee. I suppose that is why Holder was thanking these two men. Jim Inhofe (R-OK) is also on the committee and I notice he received no thanks.

As explained by the Department of Justice (DOJ) in a letter to Levin and McCain dated July 23, 2009, the amendment would:

…establish a system for addressing classified information issues in
military commissions that is similar to the system provided by the Classified Information Procedures Act (“CIPA”) for criminal cases prosecuted in Federal court.

The Levin-Graham-McCain amendment adapts CIPA to the military commissions context, with some modifications to reflect lessons learned from past terrorism prosecutions….

It sets substantive standards for providing the defense access to classified information in the discovery phase, and for the use of classified information at trial.

We believe the amendment will advance the President’s objective of reforming the commissions and ensuring that they are a fair, legitimate, and effective forum for the prosecution of law of war offenses. 

Barack Obama signed it into law on October 28, 2009. This is the law, as laid out in the legislation:

Through a Sense of Congress, the preferred forum for the trial of alien unprivileged enemy belligerents is trial by military commission.

I  guess Eric Holder didn’t get the memo.

Here’s more:

(1) Changes “unlawful enemy combatant” to “unprivileged enemy belligerent,”

(2) Making an unprivileged
enemy belligerent, who engaged in or supported hostilities against the United
States, subject to military commissions. Obviously, trial by military commission cannot be interpreted as the same as a civil Federal court.

(3) Forbids the use of statements that were obtained “by the use of torture.”

(4) Gives the accused the right to seek suppression of evidence that is not reliable or probative.

(5) Additional restrictions on the use of hearsay evidence.

(6) Specific procedures for the treatment and protection of classified information. The Military Commissions Act provides for this and meets the challenges of the Classified Information Protection Act. More on that below

(7) Unprivileged enemy belligerents will not be read Miranda rights, unless an “unappealable court order requires it.

(8) Allows the U.S. to take an interlocutory appeal to the U.S. Court of Appeals (rather than, or in lieu of current law that allows such an appeal to the Court of Military Commission Review.

(9) Right of appeal with respect to classified information. This is already in the MCA’s MRE 505 governing military tribunals.

(10) Adds contempt and perjury and obstruction of justice as triable offenses.

So this basically was about McCain tamping down “torture” and making it impossible to use any confessions or statements from that “torture,” no matter the results.

There were obviously some good things out of this: no more mirandizing, and if I understand this correctly, perjury and contempt can be charged against the defendants. Terrorists are hard-core liars and contemptible by nature.


If you are interested in DOJ’s comments that this new legislation would provide the same protections in the Military Commissions Act as afforded by the Classified Information Procedures Act (CIPA), as I looked at everything I could find, the protections afforded the accused in a military trial is virtually the same as that stipulated by CIPA.

I saw one possible difference, that being that the first responsibility of a military court is to protect national security, and the first responsibility of a civil Federal court is to protect the rights of the defendant. But the methods and way to do that are virtually the same.

Military courts are subject to the 6th Amendment’s demand for the accused’s right to a fair trial. Once the habeus corpus section of the MCA of 2006 was ruled unconsitutional, there is little that is different between Military courts and Federal courts.

The following are my notes on the CIPA and the Military’s MRE 505:

The Classified Information Procedures Act (CIPA) is a tool to help courts decided whether or not sensitive information is a national security threat, before the trial begins.

The 1980 CIP Act through a formal written request pre-trial, notifies the prosecution that the defendant will be
asking for X, Y and Z during the trial, giving the prosecution the
opportunity to dismiss the case if the risk to national security is unacceptable. A civil judge decides what is admissable and what is not – always with the defendants right to a fair trial prevailing.

Once the trial begins, if additional sensitive information comes to light, another CIPA form must be submitted for prompt court conference.

If the court admits the sensitive material for trial, the DOJ can then enter a request to the court to substitute summaries or redacted documents in lieu of originals. The court may accept or reject such a request. At all times, if summaries or redacted information is admitted, it must guarantee the defendant the same degree of fairness that the original documents would provide.

The Attorney General then decides whether to appeal the court’s ruling, or file a formal protest. If a formal protest is waged by the DOJ, the court can “require” the prosecution to dismiss the case, although the likelihood of that happening is insignificant. Once that is put to bed, the DOJ determines the degree of risk to national security if the trial goes forth. If the risk is unacceptable, the DOJ can dismiss the case. This is known as the “disclose or dismiss dilemma.” That’s it. That’s the choice. A civilian court makes the determination about a prisoner of war.

At all times, the goal of CIPA is fairness to the defendant, and while CIPA has withstood Constitutional challenges:

…the judge in the Iran-Contra prosecutions has ruled that CIPA procedures must give way when they risk excessive exposure of the defendant’s case.

 This was the case of Lieutenant Colonel Oliver North, where the judge saw a risk to North’s defense of “excessive exposure” of his case. The conclusion of the Congressional Research Service (CRS) report summary, is that it works best when when the classified information is only “marginally relevant or marginally sensitive.” When sensitive information is at the “core” of the defendant’s case, it is less likely that the case can be resolved in a manner that preserves the rights of the defendant – which means that national security is at jeopardy in such a trial, and so presumably, the DOJ would move to dismiss the case.

In a military court the guidelines are known as MRE 505. With MRE 505, CIPA is essentially flipped. National security is the greatest concern, not the defendant, but in all cases, the defendant’s right to a fair trial is adhered to.

As far back as 2004, this exhaustive article written by Joshua E. Kastenberg, compares CIPA and the Military MRE 505. I noticed something that might not happen in a civil court, although I can’t confirm that. In the case of a Marine embassy guard in Moscow, the military court ruled that the national security risk of allowing the public to hear testimony, warranted preventing public access to certain witnesses. Military courts have been been sensitive to how a trial under CIPA requirements, might change a defendant’s outcome, from that in a Military court. In otherwords, the Military has, at times, used CIPA to “balance context between an accused’s rights and the need to protect national security information.”

In a military trial, the defendant has the right to civilian counsel, but if classified material is to be introduced into evidence, the civilian attorney must have the proper security clearances. The defendant’s right to a speedy trial is likely compromised by this requirement. If the civilian counsel refuses the clearance procedure, but the defendant continues with the representation, the attorney will be excluded from some portions of the trial.

The first video below is Eric Holder announcing that the 9-11 terrorists will be brought to New York City for Federal criminal trial. The second video is Senator Barack Obama in September 2007 saying KSM would “get real military procedures….” As Scared Monkeys says,”Obama was for Military Commission tribunals before he was against them.”

Eric Holder Civil Trials (video)

Barack Obama – KSM will get real military procedures (video)