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Monday, December 13, 2010

WE HAVE some sympathy for Attorney General Eric H. Holder Jr. as he rails against Congress's latest proposed limits on moving detainees from Guantanamo Bay, Cuba - but not much. The House is irresponsibly filling a vacuum created because the Obama administration failed to lead.

The House voted to bar spending federal funds to move any detainee, including Sept. 11 mastermind Khalid Sheikh Mohammed, from Guantanamo to the United States for any purpose, including trial, through September 2011. Mr. Holder labeled this "an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects."

He's right. But how has Mr. Holder been using that executive authority? In 2009 he announced that the administration would try Mr. Mohammed in federal court in New York City. It turned out that he had failed to consult adequately with New York officials, and when they objected to logistical and security challenges the administration retreated. Since then, nothing. Will Mr. Mohammed be tried in a court? In a military commission? Nowhere? Nine years after the attack, your guess is as good as ours or, apparently, the administration's.

But it would be wrong to make Mr. Holder the scapegoat for what is a deeper administration failure. When President Obama took office, he ordered Guantanamo Bay's prison closed within one year. In May 2009 he pledged in a speech at the National Archives to develop a clear legal framework for handling alleged terrorists because he believed "with every fiber of my being that in the long run we also cannot keep this country safe unless we enlist the power of our most fundamental values." That framework, he said, would include federal trial when possible, military commission when appropriate and indefinite detention when necessary. But he stressed: "If and when we determine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight. And so going forward, my administration will work with Congress to develop an appropriate legal regime so that our efforts are consistent with our values and our Constitution."

That, sadly, was the high-water mark of the administration's effort thus far to reconcile detention policy with U.S. values. Almost no terrorists have been tried. Mr. Obama's deadline for closing Guantanamo came and went 11 months ago. And the country continues to hold suspects indefinitely, with no congressionally approved mechanism for regular judicial review. It's fine for Mr. Holder to object when Congress plays politics with this issue. But there's another appropriate target for his dudgeon closer to home.


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