Attorney General Eric Holder Jr. last night continued to press for the use of both civilian courts and military commissions as tools -- and weapons -- against "those who seek to do us harm" in wartime. And he said proposals in Congress to ban the use of civilian courts in terrorism-related cases would "seriously harm our national security."
Holder spoke before a dinner of the Constitution Project, the steadfastly bipartisan organization that seeks to tackle dilemmas of the day with consensus and constitutional values. Its president Virginia Sloan, in introducing Holder, made clear her view that trying terrorist cases in federal court is "the right thing to do," and Holder pleased the crowd by calling that option as "our most effective option" because it allows law enforcement to obtain "actionable intelligence" from defendants during plea negotiations, and to "enlist international cooperation." On Wednesday, he told the Senate Judiciary Committee that the Obama administration had not ruled out civilian trials for 9/11 suspects in New York.
But Holder also made the case for using military commissions in some circumstances, because they allow for evidentiary rules that "reflect the realities of the battlefield."
Holder also touched on another important issue for his audience -- access to justice. Its report recommending "urgent federal attention" to the problem of inadequate indigent defense laid the groundwork for the Justice Department's Access to Justice Initiative, led by Harvard Law School professor Laurence Tribe. That initiative, Holder said, "reflects an historic assurance that expanding access to legal services is, and will continue to be, a national priority."
The project presented "Constitutional Champion" awards to two people who, in the words of moderator and Slate correspondent Dahlia Lithwick, don't wrap themselves in the Constitution "because it is slimming," but rather wrap themselves around the Constitution to protct and strengthen it.
George Kendall, of counsel at Squire, Sanders & Dempsey, was honored for his tireless pro bono work representing death row inmates and other defendants in post-conviction appeals. In his remarks, Kendall decried the "domestic arms race" fueled by tough-on-crime politicians that has resulted in two million people being incarcerated. He also lamented the fact that habeas corpus has become "a dirty word," and that the federal judiciary is "blindfolded and handcuffed" because of AEDPA and other measures limiting criminal appeals.
Also recognized with an award was retired ambassador Thomas Pickering. After a long career including ambasadorships to Israel, Jordan, India, and the United Nations, Pickering became a powerful voice in opposition to war-on-terror policies that he saw as harmful to U.S. interests because they gave short shrift to constitutional principles. As a non-lawyer, Pickering said last night, "I wonder why I'm here," but said that when he saw disturbing policies evolve, he felt he had to speak out. "We have done a great disservice to our contry," Pickering said last night in accepting the award. "We have begun to hazard our national security."