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Eric Holder’s (Very Tortured) Explanation

From the Attorney General’s five page letter (a pdf file) to Senator McConnell:

February 3, 2010

The Honorable Mitch McConnell United States Senate Washington, D.C. 20510

Dear Senator McConnell:

I am writing in reply to your letter of January 26, 2010, inquiring about the decision to charge Umar Farouk Abdulmutallab with federal crimes in connection with the attempted bombing of Northwest Airlines Flight 253 near Detroit on December 25, 2009, rather than detaining him under the law of war. An identical response is being sent to the other Senators who joined in your letter.

The decision to charge Mr. Abdulmutallab in federal court, and the methods used to interrogate him, are fully consistent with the long-established and publicly known policies and practices of the Department of Justice, the FBI, and the United States Government as a whole, as implemented for many years by Administrations of both parties. Those policies and practices, which were not criticized when employed by previous Administrations, have been and remain extremely effective in protecting national security. They are among the many powerful weapons this country can and should use to win the war against al-Qaeda.

I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks. There are many examples of successful terrorism investigations and prosecutions, both before and after September 11, 2001, in which both of these important objectives have been achieved — all in a manner consistent with our law and our national security interests. Mr. Abdulmutallab was questioned by experienced counterterrorism agents from the FBI in the hours immediately after the failed bombing attempt and provided intelligence, and more recently, he has provided additional intelligence to the FBI that we are actively using to help protect our country.

As we have previously noted, the Obama administration is now claiming that Mr. Abdulmutallab’s family have gotten him to cooperate.

Is this an example of the system working? Where would we be if the family had not decided to help?

We will continue to share the information we develop with others in the intelligence community and actively follow up on that information around the world.

1. Detention. I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government. On the evening of December 25 and again on the morning of December 26, the FBI informed its partners in the Intelligence Community that Abdulmutallab would be charged criminally, and no agency objected to this course of action.

What good would objecting have done?

In the days following December 25 – including during a meeting with the President and other senior members of his national security team on January 5 – high-level discussions ensued within the Administration in which the possibility of detaining Mr. Abdulmutallab under the law of war was explicitly discussed. No agency supported the use of law of war detention for Abdulmutallab, and no agency has since advised the Department of Justice that an alternative course of action should have been, or should now be, pursued.

Again, they had already been told that Mr. Abdulmutallab was going to be tried as a civilian. So why bring up any other options?

Since the September 11, 2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States.

This claim seems to be contradicted below.

The prior Administration adopted policies expressly endorsing this approach. Under a policy directive issued by President Bush in 2003, for example, “the Attorney General has lead responsibility for criminal investigations of terrorist acts or terrorist threats by individuals or groups inside the United States, or directed at United States citizens or institutions abroad, where such acts are within the Federal criminal jurisdiction of the United States, as well as for related intelligence collection activities within the United States.” Homeland Security Presidential Directive 5 (HSPD-5, February 28, 2003). The directive goes on to provide that “[f]ollowing a terrorist threat or an actual incident that falls within the criminal jurisdiction of the United States, the full capabilities of the United States shall be dedicated, consistent with United States law and with activities of other Federal departments and agencies to protect our national security, to assisting the Attorney General to identify the perpetrators and bring them to justice.”

In keeping with this policy, the Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges. For example, Richard Reid, a British citizen, was arrested in December 2001 for attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying 184 passengers and 14 crewmembers. He was advised of his right to remain silent and to consult with an attorney within five minutes of being removed from the aircraft (and was read or reminded of these rights a total of four times within 48 hours), pled guilty in October 2002, and is now serving a life sentence in federal prison. In 2003, Iyman Faris, a U.S. citizen from Pakistan, pled guilty to conspiracy and providing material support to al-Qaeda for providing the terrorist organization with information about possible U.S. targets for attack. Among other things, he was tasked by al-Qaeda operatives overseas to assess the Brooklyn Bridge in New York City as a possible post-9/11 target of destruction. After initially providing significant information and assistance to law enforcement personnel, he was sentenced to 20 years in prison. In 2002, the “Lackawanna Six” were charged with conspiring, providing, and attempting to provide material support to al-Qaeda based upon their pre-9/11 travel to Afghanistan to train in the Al Farooq camp operated by al-Qaeda. They pled guilty, agreed to cooperate, and were sentenced to terms ranging from seven to ten years in prison. There are many other examples of successful terrorism prosecutions – ranging from Zacarias Moussaoui (convicted in 2006 in connection with the 9/11 attacks and sentenced to life in prison) to Ahmed Omar Abu Ali (convicted in 2005 of conspiracy to assassinate the President and other charges and sentenced to life in prison) to Ahmed Ressam (convicted in 2001 for the Millenium plot to bomb the Los Angeles airport and sentenced to 22 years, a sentence recently reversed as too lenient and remanded for resentencing) — which I am happy to provide upon request.

In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war.

So despite the claim above, there have been exceptions to arresting and detaining suspected terrorists under civilian law.

Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant. Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later. In both of these cases, the transfer to law of war custody raised serious statutory and constitutional questions in the courts concerning the lawfulness of the government’s actions and spawned lengthy litigation. In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war. In Mr. Al-Marri’s case, the United States Court of Appeals for the Fourth Circuit reversed a prior panel decision and found in a fractured en banc opinion that the President did have authority to detain Mr. Al Marri, but that he had not been afforded sufficient process to challenge his designation as an enemy combatant. Ultimately, both Al-Marri (in 2009) and Padilla (in 2006) were returned to law enforcement custody, convicted of terrorism charges and sentenced to prison.

When Flight 253 landed in Detroit, the men and women of the FBI and the Department of Justice did precisely what they are trained to do, what their policies require them to do, and what this nation expects them to do. In the face of the emergency, they acted quickly and decisively to ensure the detention and incapacitation of the individual identified as the would-be bomber. They did so by following the established practice and policy of prior and current Administrations, and detained Mr. Abdulmutallab for violations of federal criminal law.

2. Interrogation. The interrogation of Abdulmutallab was handled in accordance with FBI policy that has governed interrogation of every suspected terrorist apprehended in the United States for many years. Across many Administrations, both before and after 9/11, the consistent, well-known, lawful, and publicly-stated policy of the FBI has been to provide Miranda warnings prior to any custodial interrogation conducted inside the United States. The FBI’s current Miranda policy, adopted during the prior Administration,1 provides explicitly that “[w]ithin the United States, Miranda warnings are required to be given prior to custodial interviews . . . .”2 In both terrorism and non-terrorism cases, the widespread experience of law enforcement agencies, including the FBI, is that many defendants will talk and cooperate with law enforcement agents after being informed of their right to remain silent and to consult with an attorney. Examples include L’Houssaine Kherchtou, who was advised of his Miranda rights, cooperated with the government and provided critical intelligence on al-Qaeda, including their interest in using piloted planes as suicide bombers, and Nuradin Abdi, who provided significant information after being repeatedly advised of his Miranda rights over a two week period. During an international terrorism investigation regarding Operation Crevice, law enforcement agents gained valuable intelligence regarding al-Qaeda military commanders and suspects involved in bombing plots in the U.K. from a defendant who agreed to cooperate after being advised of, and waiving his Miranda rights. Other terrorism subjects cooperate voluntarily with law enforcement without the need to provide Miranda warnings because of the non-custodial nature of the interview or cooperate after their arrest and agree to debriefings in the presence of their attorneys. Many of these subjects have provided vital intelligence on al-Qaeda, including several members of the Lackawanna Six, described above, who were arrested and provided information about the Al Farooq training camp in Afghanistan; and Mohammad Warsame, who voluntarily submitted to interviews with the FBI and provided intelligence on his contacts with al-Qaeda in Afghanistan. There are other examples which I am happy to provide upon request. There are currently other terrorism suspects who have cooperated and are providing valuable intelligence information whose identities cannot be publicly disclosed.

So it was right to Mirandize Mr. Abdulmutallab because there have been times in history where terrorists have still continued to talk even after being apprised of their (so-called) right to remain silent.

What logic.

The initial questioning of Abdulmutallab was conducted without Miranda warnings under a public safety exception that has been recognized by the courts. Subsequent questioning was conducted with Miranda warnings, as required by FBI policy, after consultation between FBI agents in the field and at FBI Headquarters, and career prosecutors in the U.S. Attorney’s Office and at the Department of Justice. Neither advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him, however. On the contrary, history shows that the federal justice system is an extremely effective tool for gathering intelligence. The Department of Justice has a long track record of using the prosecution and sentencing process as a lever to obtain valuable intelligence, and we are actively deploying those tools in this case as well.

That’s right. Why bother to have him confess when you might be able to get the same information – much later – by offering him a greatly reduced sentence for his crimes?

Again, this is what the Obama administration means when they say the system works.

Some have argued that had Abdulmutallab been declared an enemy combatant, the government could have held him indefinitely without providing him access to an attorney. But the government’s legal authority to do so is far from clear.

Well, then, if there is even a scintilla of doubt, we had better not do it. After all, it’s not like there are lives at stake.

In fact, when the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system. Moreover, while in some cases defense counsel may advise their clients to remain silent, there are situations in which they properly and wisely encourage cooperation because it is in their client’s best interest, given the substantial sentences they might face.

3. The Criminal Justice System as a National Security Tool. As President Obama has made clear repeatedly, we are at war against a dangerous, intelligent, and adaptable enemy. Our goal in this war, as in all others, is to win.

Except that Mr. Obama has himself said that he is uncomfortable talking about “victory” in the war on terror. He said that his goal was to just keep them from attacking the United States.

Victory means defeating the enemy without damaging the fundamental principles on which our nation was founded. To do that, we must use every weapon at our disposal. Those weapons include direct military action, military justice, intelligence, diplomacy, and civilian law enforcement. Each of these weapons has virtues and strengths, and we use each of them in the appropriate situations.

Over the past year, we have used the criminal justice system to disrupt a number of plots, including one in New York and Colorado that might have been the deadliest attack on our country since September 11, 2001, had it been successful. The backbone of that effort is the combined work of thousands of FBI agents, state and local police officers, career prosecutors, and intelligence officials around the world who go to work every day to help prevent terrorist attacks. I am immensely proud of their efforts.

How is any of this relevant to the case under discussion? Mr. Abdulmutallab’s failure to kill 300 people on that plane and who knows how many on the ground was merely an accident. The counter-intelligence agents around the world blew it, even after having been warned by the terrorist’s own father.

And this error was compounded by Mr. Holder’s decision to tell him to stop talking, when he had been supplying useful information about his and perhaps other plots.

At the same time, we have worked in concert with our partners in the military and the Intelligence Community to support their tremendous work to defeat the terrorists and with our partners overseas who have great faith in our criminal justice system.

The criminal justice system has proven to be one of the most effective weapons available to our government for both incapacitating terrorists and collecting intelligence from them.

Is this the same criminal justice system that has released hundreds of Guantanamo detainees, about a third of which have returned to jihading against our country?

Removing this highly effective weapon from our arsenal would be as foolish as taking our military and intelligence options off the table against al- Qaeda, and as dangerous. In fact, only by using all of our instruments of national power in concert can we be truly effective.

Then why have we given up on military tribunals?

Oh, and we’re sure that terrorists quake at the thought of getting their Miranda rights and their court-appointed attorneys.

As Attorney General, I am guided not by partisanship or political considerations, but by a commitment to using the most effective course of action in each case, depending on the facts of each case, to protect the American people, defeat our enemies, and ensure the rule of law.

Tell that to the Black Panthers in Philadelphia. Tell that to ACORN.

Tell that to the people near the would-be KSM courthouse in New York City.


Signature of Eric H. Holder, Jr.

Notice that we are given very few specifics about whom Mr. Holder consulted before making this, his latest boneheaded decision.

Lest we forget, Mr. Holder told Jim Lehrer of the PBS NewsHour who he turned to for guidance about moving the trial of Khalid Sheik Mohammed and his fellow terrorists to New York City:

Holder: 9/11 Trials Will Weigh ‘Crime of the Century’

Online NewsHour | Nov. 13, 2009 | PBS

JIM LEHRER: Did you talk to anybody outside the government?

ERIC HOLDER: I talked to my wife


ERIC HOLDER: … about what she thought. And I actually talked to my brother, who’s a retired Port Authority police officer who served

JIM LEHRER: Oh, is that right? Yes.

ERIC HOLDER: … in New York, New Jersey, and who lost friends and colleagues on 9/11 in the towers, and talked to them about what — was it appropriate to bring it in New York, the symbolic significance of it, the possibility of getting a good and fair detached jury.

So, those are at least two people I spoke to outside the normal realm.

It’s painfully clear that Mr. Holder either hates this country or he is simply too incompetent to do his job effectively. He should have been replaced long ago.

But his boss seems to be in the very same boat.

This article was posted by Steve on Thursday, February 4th, 2010. Comments are currently closed.

7 Responses to “Eric Holder’s (Very Tortured) Explanation”

  1. wardmama4 says:

    excuse me – but did not The Won say this:

    -‘The whole premise of Guantanamo promoted by Vice President Cheney was that, somehow, the American system of justice was not up to the task of dealing with these terrorists. I fundamentally disagree with that. Now, do these folks deserve miranda rights? Do they deserve to be treated like a shoplifter down the block? Of course not.’-

    On 60 minutes –

    Like all things with this Thug Administration – lie, lie, and then lie some more.

    We have proof (9/11) as to the escalation of terrorism when these terrorists are handled in the Courts as common criminals – Yet here again – The Won is doing a Clinton redo and going to make the next 9/11 probably worse.

    I feel that the Lie-brals are against the military tribunals – because after the guilty verdict – they would be hanged and also all the intelligence could not be presented to the World Court to try evil Bushitlerburtonco.

    So The Won is more interested in a bs war crimes trial and endangering all Americans rather than really winning the GWOT.

    In addition to his totally damaging our economy, destroying capitalism and the free market – and his backdoor attempts to takeover control of the average Americans life – while opening our borders to every type of criminal and terrorist policies – It does appear that indeed the only Change The Won has in mind is the total destruction of America.

  2. Right of the People says:

    Like they say, “If you can’t dazzle them with brilliance, baffle them with bullshit.”

    That “explanation” reminds me of a teenagers argument with all kinds of irrelevant BS being thrown in to confuse the issue.

    Someone sent me this, it’s former NHL star Don Cherry and his opinion of what to do with terrorists.

    DON CHERRY of Hockey Night in Canada, was asked on a local live radio talk show, just what he thought about the allegations of torture of suspected terrorists. His reply prompted his ejection from the studio, but to thunderous applause from the audience.


    “If hooking up one raghead terrorist prisoner’s testicles to a car battery to get the truth out of the lying little camelshagger will save just one Canadian life, then I have only three things to say:

    “Red is positive, black is negative, and make sure his nuts are wet!!!”

    An excellent philosophy if you ask me.

  3. proreason says:

    Obamy is often used as the ultimate example of the fruits of affirmative action.

    But Holder is another example who by acting as the energizer bunny of incompetance is proving to be just as dangerous.

    In a sane world, Holder would be picking fruit for a living…..under close supervision.

    Obamy’s election is making it more and more obvious what a horrible problem affirmative action combined with liberalism has become for this country. Charley Rangel, Maxime Waters, Freezer Jefferson, every mayor of Detroit for the last 30 years, Obamy, Holder, Van Jones, the guy who finally gave up on being the TSA czar, and many more.

    The common argument would be that there are just as many mentally challenged politicians of other races, but Iif you look at the percentage of idiots and fools of African descent who are liberal vs the sane ones, the problem is pretty obvious.

    Affimative action is like a chemical that isn’t particularly dangerous except when a catalyst is added. All by itself, it isn’t a big problem, simply because most jobs are designed to tolerate incompetance. After all, if the telephone rep doesn’t have the knowledge or ability to help you, you can just call back and get one who can help. It’s annoying, but not life threatening.

    But liberalism acts is the catalyst that gives affirmative action the ability to do massive damage to the country. What other than liberalism put a clown like Eric Holder in a job where he has the ability to read the panty bomber Miranda rights? What other than lilberalism can explain how Maxime Waters got elected?

    And once these hate-filled demagogues get some power, it’s almost impossible to get rid of them. You can’t even complain. If you do, you’re a racist. So we have Maxime Waters, a person who should be washing the kettles in a school cafeteria, lecturing and threatening banking executives.

    Consider Obamy. He isn’t stupid, but at best, he is a naive incompetant. At worst he is a dictator bent on destroying the country. He has committed at least 4 impeachable offenses: overturning contract law to cheat the Chryler bondholders, dismantling the proven apparatus of National Security, committing to the lunatic Copenhagen agreement, and staffing the government with czars who are not subject to Congressional approval. But if you don’t worship the ground he walks on, you are a racist.

    Affirmative action and Liberalism may be the third biggest problem in the country, right behind our weakened National Security, and the insane economic policies that are being implemented. And you could easily argue that we wouldn’t have the first two problems without Affirmative Liberalism.

  4. joeblough says:

    Eric Holder’s (Very Tortured) Explanation

    I thought Holder was against torture. I guess it’s selective. He doesn’t mind at least trying to torture our minds.

    That these people are mediocrities is obvious and undeniable. But I wouldn’t regard them as complete idiots.

    They are simply working from a set of values, premises and goals which are so utterly and unbridgeably alien to those of normal Americans as to make them sound like idiots.

    Certainly what they are doing would be an idiotic approach to achieving normal American values and goals especially if proceeding from normal American premises.

    But that’s not what they’re about. And within their own bizarre private world they are actually quite clever and fairly competent.

    They don’t mind seeing the citizens subjected to outrageous risks. They don’t mind the loss of America’s wealth (which they consider ill gotten). They don’t mind seeing America humbled and reduced.

    These are people that shouldn’t even have low level security clearances, much less ready access to highly sensitive data. High office? This is the stuff of Lewis Carrol.

    Except it will work out as the stuff of Kafka and George Orwell.

  5. eaglewingz08 says:

    Let’s not forget that all four top intelligence agency officials of the Obama Administration testified under oath that they were not informed of the decision to mirandize and treat this terrorist as a ordinary criminal defendant. So Blair, Napolitano, Panetta, etc. stated contrary to this self serving letter that somehow the FBI never dialed them up to get their opinions PRIOR to the decision having been made. Second, OBAMA DID NOT OBJECT to this decision. Third, counting on the generousity of strange terrorists and their families for information is a fool’s errand most of the time. Fourth, there was a case recently reversed by the Ninth Circuit (of all places) which remanded the sentencing of an AQ high value defendant, as too lenient. Turns out that defendant recanted his testimony against two other high value AQ operative defendants, requiring the government to drop their cases, and deport them to Britain, where they are on the dole, in between gigs. Thus Holder’s 100 percent figure is about as scientifically sound as Obama’s 2 million jobs created or saved rhetoric.

  6. canary says:

    He left out Gitmo for tribunal hearings. This is far from over, as they let us know there will be more and more attacks.

    Records broken

    Ft. Hood, largest terrorist attack on a military base in U.S. or Middle-East in U.S. history.

    False information that led to the worst attack in the U.S. or M.E. of any of it’s kind against U.S. intelligence; CIA bombed.

  7. Liberals Demise says:


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