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Letter to Attorney General Holder


Location: Washington, DC

U.S. Senator Jeff Sessions (R-AL), Ranking Member of the Senate Judiciary Committee, and Senate Republican Whip Jon Kyl (R-AZ), today released the following letter sent to Attorney General Eric Holder concerning his failure to disclose to the Judiciary Committee roughly two-thirds of his work as an amicus party before the Supreme Court--disclosures required as part of his confirmation.

The omitted briefs include two filed in support of al Qaeda terrorist Jose Padilla's challenge to his detention as an enemy combatant. Sessions and Kyl's letter asks the Attorney General to explain the omission and to reconcile the apparent contradictions between his current and former expressed views on the dangers of placing terrorists in the criminal justice system. In seeming contrast to statements Holder made as Attorney General, the omitted briefs acknowledge that questioning and trying terrorists as civilian criminal defendants limits our ability to gather intelligence and disrupt future threats.

A text of the letter follows:

Dear Attorney General Holder:

On March 10, we learned through media reports that you had submitted two amicus briefs to the Supreme Court in support of Jose Padilla, a U.S. citizen suspected of working with al Qaeda to carry out a terrorist plot on U.S. soil. The Padilla matter was a high-profile case broadly addressing national security authorities in an ongoing war. Nevertheless, you failed to disclose your participation in response to the Senate Judiciary Committee's questionnaire during your confirmation process.

A Department of Justice spokesman said that the Padilla briefs were "unfortunately and inadvertently" not submitted to the Committee. Two days later, on March 12, Mr. Weich identified additional Supreme Court briefs that were not provided to the Committee during the confirmation process. These include four other Supreme Court briefs where you were listed as an amicus party. Thus, absent further revelations, your questionnaire appears to have omitted two-thirds of your work as an amicus party before the Supreme Court. Also missing from your questionnaire response were two Supreme Court filings where you served as counsel.

The failure to identify and disclose the Padilla briefs is particularly significant, given the important issues that case presented regarding the President's detention authority. Your personal views on these issues--as set forth in the friend of the court briefs submitted in your name--was particularly relevant to the role that you, as Attorney General, now play in shaping detention policies and defending those policies in court. There can be no doubt that, had you submitted these briefs as required, members of the Committee would have asked you about them.

Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators. Your brief also contrasts with the administration's defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.

Last November, you defended your decision to prosecute KSM in the civilian criminal system by arguing that your chosen venue was "most likely to obtain justice for the American people." When pressed on how you could guarantee successful prosecution, you boldly asserted that "failure is not an option." You testified that you did not believe there was any meaningful risk that the detainees you were ordering to the United States for trial might be eventually released. With regard to the Christmas Day bomber, you defended your decision by writing that you were "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."

One of the Padilla briefs submitted in your personal capacity paints a very different picture of the inherent risks and tradeoffs that come with handling terrorists through the civilian system. In your Padilla brief, you acknowledged "limitations" that "might impede the investigation of a terrorist offense in some circumstances" and explained:

It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.

We agree with your pre-confirmation acknowledgment that there are national security risks associated with putting terrorists into our civilian criminal justice system. But we are troubled that, as Attorney General, you appear to have minimized and understated these risks in an effort to justify the administration's flawed detention, interrogation, and prosecution policies.

In light of recent revelations about this brief and others that were not disclosed in your questionnaire responses to the Senate Judiciary Committee, I respectfully ask that you respond to the following questions:

(1) In the questionnaire submitted to the Senate Judiciary Committee prior to your confirmation hearing, you disclosed three amicus briefs but not the briefs in support of Jose Padilla or the four other cases where you have now been identified as an amicus party. Why did you not disclose to the Committee your involvement in these cases on your nomination questionnaire? To the extent that the omissions were inadvertent, please: (a) describe the process by which your responses were prepared; (b) identify all individuals involved in that process; and (c) state whether you reviewed all responses for completeness and accuracy before submitting them to the Committee.

(2) Aside from the briefs, described in this letter, that were not submitted as required by the Senate Judiciary Committee questionnaire (Question 14(e)), are all other answers on your nominee questionnaire complete and accurate? If not, please submit any necessary corrections and/or supplemental materials.

(3) As described above, the 2004 amicus brief and its acknowledgment that the civilian system may render the government "unable to detain a dangerous terrorist or to interrogate him or her effectively" contrasts sharply with your November 2009 testimony before the Senate Judiciary Committee and the administration's defense of its handling of the Christmas Day bomber. If you can, please reconcile these two seemingly contradictory positions on the risks posed by the civilian criminal system in terrorism cases, as well as which of these philosophies has informed the Department's decisions in detainee matters.

Thank you in advance for your consideration of this matter. We respectfully ask you to respond to these questions prior to your next appearance before the Committee on Tuesday, March 23.

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