Eric Holder's Guantanamo Bay morass

By Dana Milbank
Thursday, April 15, 2010; A02

Eric Holder is a Guantanamo Bay prisoner.

He's not imprisoned at Gitmo, but he's imprisoned by Gitmo. The Justice Department he leads, and to some extent the whole Obama administration, has been detained -- tortured, even -- by the star-crossed attempt to close the military prison.

It began in the first hours of the administration, when Obama pledged to close Gitmo without a plan for doing so. It got infinitely worse in November, when Holder announced that 9/11 mastermind Khalid Sheik Mohammed would be tried in New York City.

So when Holder came before the Senate Judiciary Committee for questioning Wednesday morning, Democrats and Republicans confronted the attorney general with the same question: What's the plan? And Holder had no answer.

Sen. Ben Cardin (D-Md.) asked Holder about the administration's interminable deliberations over what to do with the detainees. "How far along are we?"

"Well, that is something that we're still working on," Holder said, turning on his verbal fuzz machine. "Needs to be a process . . . initial determination . . . task force . . . principals' committee . . . ongoing review . . . still working through in the interagency."

Cardin reminded the attorney general that "we're looking forward to some broader recommendations."

Holder went on further about the "review mechanism."

"When should we expect some specifics as to how these procedures are being handled?" Cardin pressed. "I've heard you say frequently 'as soon as possible.' But it's getting late."

"Yeah, I mean, it is -- it is a priority. I mean, I think -- you know, what has . . ." Eventually Holder produced some more fuzz about how "it is now incumbent upon us to develop as quickly as we can what the review mechanism is going to be."

"Sometime this year?"

"I would certainly think that is -- I would -- I would -- I certainly think we can do that."

"Sometime this month?"

"I'm not sure we can do that."

Cardin laughed. "This is an issue that is difficult for us to defend, when we don't have anything to defend," he pleaded. "We don't have a policy to defend. So I just urge you to get that to us as quickly as possible."

By giving the Democrats no ammunition with which to defend him, Holder had little help in answering the GOP assaults. "Your actions have shaken my confidence in your leadership," the committee's ranking Republican, Sen. Jeff Sessions (Ala.), told him.

Holder looked at Sessions as if considering an interesting point, scratching his ear and stroking his chin. But he wouldn't rule out doing what irked Sessions most: proceeding with a civilian trial of Mohammed in Manhattan.

Legal merits aside, trying the terrorist leader in New York would be a political disaster -- something everybody seems to grasp but Holder. "The overwhelming consensus in New York, as you know, is that it shouldn't be there," Sen. Chuck Schumer (D-N.Y.) told Holder. "I just strongly urge you to make sure that that doesn't happen."

Sen. Dianne Feinstein (D-Calif.), though attempting to defend Holder against what she called "reprehensible" Republican attacks, felt it necessary to tell him that "I understand why New Yorkers feel the way they do."

Had Holder not announced plans to send Mohammed to New York, the administration may well have been able to work out a deal in Congress by now to close Gitmo. Instead, the process has come to a halt as Republicans, furious about the trial, block funds to open an Illinois prison that could house detainees.

The stalemate left Holder with no answer to Democrats' pleas for action. Sen. Herb Kohl (D-Wis.) asked the attorney general for "an update on your timeline" for closing Gitmo.

"As quickly as we can," Holder punted.

"Does that mean it might be this year? Next year? The following year? The year after that?"

Again, Holder wouldn't say.

One committee Republican, Sen. Lindsey Graham (S.C.), offered Holder a key that would release him from his Gitmo confinement: Give up on plans to try Mohammed in civilian courts and work with Congress to sort out which terrorism prisoners will be tried in federal courts in the future. "I am one senator on the Republican side who has not objected to [civilian] courts being used in a flexible, pragmatic, aggressive fashion," he said.

"I want to also associate myself with Senator Graham's remarks," seconded Sen. Sheldon Whitehouse (D-R.I.).

But Holder was not entirely sure he wanted to associate himself with Graham's proposal. When Graham asked Holder why he thought public attitudes had turned against closing Guantanamo Bay, Holder blamed his critics. "I honestly think that there's been a lot of misinformation," he said. "I think there's been unnecessary politicization."

"Can I give you an alternative theory?" Graham inquired. "I think there's a lot of people in this country worried we don't have a coherent policy."

Surprisingly, Holder agreed. "I think that it's incumbent upon people like myself to be more forthcoming, perhaps more clear with the American people about what our intentions are," he acknowledged.

The prisoner was beginning to find his way to freedom.

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