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Holder, Obama On The KSM Trial, OPR Torture Report

Marcy Wheeler is liveblogging the Senate Judiciary Committee oversight hearing with Attorney General Holder. I just wanted to point out a few interesting pieces that I’ve seen.

• Much of the hearing is concerned with the decision to try Khalid Sheikh Mohammed and some co-defendants in federal criminal court in New York rather than through the military commission process. Support or opposition to the decision is falling generally along party lines, but the Attorney General is strongly supporting his position. Reacting to the criticism that KSM could use the hearings as a soapbox for his radical views, he said in prepared remarks, “If KSM makes the same statements he made in his military commission proceedings, I have every confidence the nation and the world will see him for the coward he is. I’m not scared of what KSM will have to say at trial – and no one else needs to be either.”

• Holder defended the criminal justice system itself in his remarks. “We need not cower in the face of this enemy. Our institutions are strong, our infrastructure is sturdy, our resolve is firm, and our people are ready.” Obviously, Republicans on the panel were not so convinced.

• Russ Feingold was one of the few to point out the disconnect between bringing KSM to federal court, but deciding on military commissions for some other Guantanamo detainees. He said he “remains skeptical” about that decision. Jon Kyl alluded to this when he asserted that Holder was essentially jurisdiction shopping, deciding on venues for trials based on likelihood of conviction. He was going at it wrongly, but it’s hard to argue with that core premise, given the actions.

• Holder did say that federal prosecutors would be willing to accept a guilty plea from KSM, similar to what he pleaded in Guantanamo proceedings, in order to move quickly to the sentencing phase.

• The President also weighed in on KSM today, bristling when it was suggested to him that the public may be offended by staging the trial in New York. Coming close to pre-judging the case, he said, “They won’t find it offensive at all when he’s convicted and when the death penalty is applied to him.” He backtracked on that comment somewhat later in the NBC interview with Chuck Todd.

• Holder said that the military commissions are “much better when they were” because of changes made to them by Congress, and that there’s a role for them to play. This has been refuted by civil liberties advocates.

• Sheldon Whitehouse asked about the OPR report on torture and the Office of Legal Counsel. Holder says that it took longer than he anticipated, because they gave a lot of time to the lawyers for those named in the report to respond (John Yoo, Jay Bybee, Steven Bradbury, etc.), but that the report is complete, it’s going through its final level of review, and that it should be released by the end of the month.

UPDATE: Wow, I missed Chuck Grassley bringing up OJ as an example of someone presumably guilty being acquitted. How do you begin to comment on that?

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David Dayen

David Dayen