Eric Holder: An Empty Gun

In my twenty-six years as a “street agent” with the FBI, I worked with some of the most dedicated state and local law enforcement officials in the nation. As we prepared the various operations, the question always came down to, “Where do we get the most bang for the buck?” No one was interested in personal glory. It was about getting the bad guys off the street for the maximum period of incarceration so those who lived by society’s rules were safer. If federal court offered more time and a surer conviction, we took it to the U.S. Attorney’s office. If state court was the answer, we took it to the District Attorney. We never worried about future press conferences or the media.

I was livid when Attorney General Eric Holder announced early in this administration he was snatching defeat from the jaws of victory and holding criminal trials for Khalid Sheik Mohammed and his four co-conspirators, conspirators who announced their intent to plead guilty at military tribunals. I viewed it as political grandstanding, although I hoped it was principled.

This week’s announcement confirmed in my mind his political posturing. In announcing the 9/11 conspirators would now be tried in military tribunals at Guantanamo Bay, Holder blamed Congress, a Congress, which until the most recent election, was controlled by his party. I also believe he set up Congress as the fall-guy when terrorists predicate their assaults overseas on the military tribunals. As we’ve seen this past week, U.N. workers were killed because of the burning of the Koran and the reporting of a U.S. military “kill team.” I see no reason why this won’t be one more excuse for violence.

With that in mind, a quick refresher from a street agent’s perspective on jurisdiction, venue, and the exclusionary rule… “Jurisdiction” means a court has the right to hear a case. “Venue” is the location where the case is heard. Any Federal District Court has the “jurisdiction” to hear any violation of federal law. “Venue” is a locale most convenient to all the parties. In other words, the 9/11 conspirators could have been tried in any Federal District Court. For the convenience of the witnesses, the venue for the trial should have been New York but for a variety of reasons the trial could have been held almost anywhere.

With Holder’s announcement, Senate Judiciary Committee Chairman Patrick Leahy, D-VT said, “I believe that our justice system, which is the envy of the world, is more than capable of trying high-profile terrorism and national security cases.” Question Senator: “What efforts did you take to have the case tried in Vermont?” You mean to tell me with all your influence in Vermont AND the fact the U.S. Attorney in Vermont is appointed by the President AND you and the Attorney General wanted the case in federal court, you couldn’t get the case tried in your state? Why not? You had jurisdiction. If it was really all that important I think a powerful man like you could have made it happen. What about any other federal district? Every U.S. Attorney works at the pleasure of the President. The Democrats still control the Senate. If this were a principled decision and not a political one, I think a Senator and U.S. Attorney would have stepped forward. I believe the obvious reason, regardless of party, was that most saw the military tribunal as the proper avenue for a variety of reasons.

The Exclusionary Rule, a court-contrived interpretation of the 4^th Amendment, calls for the exclusion of any evidence deemed by a judge to have been seized illegally. Individuals clearly guilty of crimes, sometimes heinous crimes, have walked out of our courtrooms because a judge ruled a law enforcement official erred in seizing the evidence. A precedent has been set…our judicial system, “the envy of the world,” allows the guilty to go free.

In the past, Eric Holder has affirmed in principle the President’s statement in 2008, “But make no mistake. We will close Guantanamo prison, which has damaged our national security interests and become a tremendous recruiting tool for al Qaeda. . .”

If the President and the Attorney General truly believe a grave injustice has been done at Guantanamo, if those captured should be tried in judicial courts rather than military tribunals, if this serves as a recruiting tool for terrorists then why not dismiss all charges and release those being held? Our system allows the guilty to go free. It would be an unpopular decision and there would be calls for impeachment, but if principled, it would seem the “greatest orator” to occupy the White House could make his case.

My guess is the Commander in Chief, once he assumed office, grasped the difficulties his predecessor faced. He understood the importance of maintaining Guantanamo Bay, utilizing military tribunals, and keeping some men detained, possibly forever. Now the President approves of the decision to try these men in military tribunals. And the Attorney General after 507 days of pondering realized…well, I still can’t figure out what he realized. His value, as I see it, has been to stand before the media and claim success for the dangerous work brave men and women have done and continue to do to keep this nation safe.

During my career I made hundreds of arrests, sometimes never even drawing my weapon. At those times it really didn’t matter whether the gun was loaded. However, when I needed to pull the trigger I was glad the hammer fell on a chambered round.

Eric Holder is an empty gun. I would suggest he either holster his weapon or load it. The American people deserve better.