US Attorney General Eric Holder Jr on Thursday denounced a congressional proposal to block the transfer of any Guantanamo detainee into the US, calling it “an extreme and risky encroachment on the authority of the executive branch to determine when and where to prosecute terrorist suspects.”
The proposal is contained in a spending bill that was passed by the House late on Wednesday, just hours after it was unveiled. It would ban the use of federal money to bring detainees into the country from the military base in Guantanamo Bay, Cuba, for any purpose — including trials — before the end of the fiscal year next September.
In a letter to Senate leaders, Holder argued that enacting the House provision into law would set a “dangerous” constitutional precedent because “the exercise of prosecutorial discretion has always been and must remain an executive branch function.”
He also criticized a part of the provision that specifically forbids transferring Khalid Sheikh Mohammed, the professed mastermind of the Sept. 11 attacks. Holder supports prosecuting Mohammed in a civilian court, but critics have argued that he should be tried before a military commission in Guantanamo.
Holder said there was no precedent in “the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes.”
There was little immediate reaction to his letter in Congress, which has been rushing to finish work on many matters in the post-election session. However, several aides to lawmakers said it was far from clear that the Senate would seek to modify it, noting that most Democrats in the House voted for the measure. (Republicans opposed the spending bill for other reasons.)
The recurring debate over whether terrorism defendants should be prosecuted in civilian courts or military commissions flared last month after a jury convicted the first Guantanamo detainee to receive a civilian trial on just one of 285 charges related to the 1998 embassy bombings in Africa. While the defendant is still facing up to life in prison, critics said it showed that civilian trials risked acquittals.
Many Republican lawmakers have pushed to try terrorism defendants exclusively in the tribunals. But several former national-security officials who served under President George W. Bush have argued for keeping both options available, in part because some allies view the tribunals as illegitimate and will share important evidence only for regular trials.
A secret State Department cable from Madrid — part of a cache obtained by WikiLeaks and made available to The New York Times — shows that in January 2010 Spain’s attorney general and its chief prosecutor lauded the “bravery” of Holder’s push to prosecute Mohammed in a regular court, which they portrayed as “going back to democratic normalcy.” They offered to provide evidence about Mohammed’s role in an al-Qaeda attack on a Tunisian synagogue in 2002 for use in such a trial.