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Memo to Holder: Who's Accountable Now?

Memo to Holder: Who's Accountable Now?

By Ronald Cass - November 17, 2009

When the Clinton administration prosecuted the blind cleric, Sheik Omar Abdel Rahman, and nine co-defendants in federal court in New York for their roles in the 1993 bombing of the World Trade Center, much less was known about al-Qaeda and the risks of using ordinary criminal process for terror suspects. Part of the legacy of that trial was the disclosure of information to the lawyers for the defendants that wound up promptly in the hands of al-Qaeda members who eventually would plan and execute the next attacks on the World Trade Center on September 11, 2001. The information, which revealed some of what our government knew about international terrorism and how we knew it, helped shield some of the terror enterprise's deadly planning from those trying earnestly to monitor and stop terrorism. No one will ever know how to apportion responsibility, but there should be no doubt that this was one of many contributing factors to the loss of nearly 3,000 innocent lives in the horrific attacks of 9/11.

Now President Obama's Attorney General, Eric Holder, has made the decision to bring Khalid Sheikh Mohammed (indicted but never prosecuted for the 1993 explosion) to trial in federal court in New York as the mastermind behind the 9/11 attacks. I have no doubt that Mr. Holder is an honorable man who took this decision seriously, worried about it, and weighed carefully the advice of his legal team and others in (and perhaps out of) the administration regarding the risks and benefits of this and alternative approaches, such as use of the military tribunals authorized by Congress and favored by the Bush administration for terror trials. The 240 pages of memoranda he reviewed just before reaching his decision were the synthesis of what both political appointees and career officials thought most relevant to the choice of process and venue. The public doesn't yet know what was in those memos - whether they contained any speculation on political risks from sticking with military tribunals, for instance - but undoubtedly a lot of legal and practical considerations were reviewed critically by the team and the Attorney General.

Most public attention now will focus on whether Mr. Holder made the right choice. But that isn't the only question people concerned with how our government works should be asking.

The other question is what if Mr. Holder has guessed wrong? What if challenges to the way evidence was obtained result in exclusion of enough material that KSM is acquitted? What if discovery rules for federal criminal trials again result in disclosure of sensitive information - ending up in the hands of our enemies - on how we gather information and who provides it? What if that facilitates another attack with more lives lost?

Would there then be exposure for Holder and those who advised him? Should the public have access to the memos now so that we can judge for ourselves if the advice was sound? Should we be thinking about possible legal sanctions, maybe even prosecution, if we decide the advice was wrong, that it didn't rightly account for the risks to our safety and our lives, that it didn't value our security highly enough, or didn't ultimately fulfill the legal obligations of those in high office?

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Like all Americans, I sincerely hope Holder's optimism respecting the use of civilian courts for deciding what punishment to mete out to international terrorists is borne out. I also recognize that every critical decision like this one ultimately is a judgment about the probability of certain results and the values of specific good or bad outcomes. There can be no certainty in these matters.

If history is a guide, however, there will be plenty of bad fallout from this choice. The ill fit between the criminal process and the fight against international terrorism will reverberate in a series of decisions down the road respecting the conflict between effective antiterrorist measures and steps necessary to preserve litigation options. We don't want soldiers thinking about reading enemy combatants their rights, giving them Miranda warnings, making sure they have access to lawyers. We don't want our intelligence community worrying that Brady rules for disclosing evidence will compromise their effectiveness by revealing critical information on their methods and sources.

Admittedly, there are laws to protect confidential information that, in theory, can help shape procedures at trial to prevent nightmare scenarios. But those laws were in place during Rahman's trial as well. While one of his lawyers and other members of his legal team were convicted and sentenced to prison for revealing confidential information in that trial, that provides little comfort to Americans who lost loved ones, thanks in part to the disclosures. Laws are critical to our civilization, but the threat of legal punishment isn't enough to prevent harm from people who don't value our laws or our lives.

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In marked contrast, the threat of legal punishment has a powerful chilling effect on people who live under the rule of law, whose lives and livelihoods are tied to the law. Much as I disagree with Mr. Holder, he and those who advised him shouldn't have to worry about the prospect of prosecution if the next administration decides they made the wrong call. They shouldn't have to worry about having the information they were looking at disclosed in ways that might discourage open, honest communication among public officials. They shouldn't have to worry about conforming to whatever comes to be accepted as good policy two or four or ten years down the road.

That is a lesson the same officials should keep in mind as they weigh what steps to take against former Bush administration officials. Mr. Holder and President Obama have wavered on the question whether prior officials should be prosecuted for their determinations - whether memos and communications between Department of Justice attorneys and other administration officials should be publicly released. Those officials should get the same respect for a serious, thoughtful effort to frame the information the right way and to reach the right decision as those advising Holder should receive now.

Ronald A. Cass is Dean Emeritus of Boston University School of Law and Chairman of the Center for the Rule of Law.  He sits as a United States member on the ICSID panel of conciliators for the World Bank.

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