James Cole, nominated for deputy U.S. attorney general, today endorsed the use of both civilian courts and military commissions for trying suspected terrorists, aligning himself with the Obama administration's push for flexibility in such cases.
Cole (pictured above) outlined his stance during his confirmation hearing before the Senate Judiciary Committee. It is likely to be another disappointment for civil libertarians who oppose the use of military commissions, but it also did not appease some Republican senators, who questioned Cole about the challenges of using civilian courts.
If confirmed, Cole, a Bryan Cave partner in Washington who spent the first 13 years of his career at the U.S. Justice Department, would be the department’s No. 2 official.
“We must use every tool we have to fight terrorism. That includes both military commissions and Article III courts,” Cole said today. “We need both of those tools. Each one has its advantages and its limitations.”
Sen. Jeff Sessions (R-Ala.), the top Republican on the Judiciary Committee, said he worried about treating suspected terrorists as civilian defendants as soon as they’re taken into custody.
“You capture enemies. You arrest criminals,” Sessions told Cole. “It’s clear to me that anyone associated with al-Qaeda that’s captured can be treated as a prisoner of war, and we don’t provide lawyers or trials to prisoners of war. We hold them until the war is over.”
Under questioning from Sen. John Cornyn (R-Texas), Cole defended the reading of Miranda warnings to some suspected terrorists. He noted that the Supreme Court generally requires such warnings if prosecutors want to use a suspect’s statements in court later. “The reason to give Miranda warnings is to make sure you can use whatever information you get,” Cole said.
When Cornyn asked about a potential trial for suspected 9/11 plotter Khalid Sheikh Mohammed, Cole said the Obama administration needs to keep its options open. “These are decisions that have to be made based on all of the facts and circumstances that relate to the cases,” he said.
Sen. Lindsey Graham (R-S.C.) noted that he had already met privately with Cole to discuss the use of military commissions. Graham, who supports their use, said he felt comfortable that Cole understands the role that such commissions can play. “I assume you’ll be confirmed,” Graham told the nominee.
Photo by Diego M. Radzinschi / The National Law Journal.