By Erik Wasson - 12/09/10 08:39 PM EST
Attorney General Eric Holder wrote to the Senate majority and minority leaders Thursday opposing language in a House-passed spending bill that would effectively prevent the closure of the prison at Guantánamo Bay, Cuba.
The provision in the $1.1 trillion continuing resolution, which passed Wednesday, would prevent any funds from being used to transfer detainees, including suspected terrorists, from the prison to the United States. It would thus make trials other than military tribunals impossible.
“We have been unable to identify any parallel … in the history of our nation in which Congress has intervened to prohibit the prosecution of particular persons or crimes,” he wrote.
“The provision goes well beyond existing law and would unwisely restrict the ability of the executive branch to prosecute alleged terrorists in Federal courts or military commission in the United States as well as its ability to incarcerate those convicted in such tribunals,” Holder wrote.
The attorney general noted that Obama, in May 2009, backed the trying of suspected terrorists in ordinary civilian courts.
“Such decisions should be based on the facts and circumstances of each case and the overall national security interests of the United States,” Holder said in the letter. “[The provision] would undermine my ability as Attorney General to prosecute cases in Article III courts, thereby taking away one of our most potent weapons in the fight against terrorism.”
Holder received a good deal of criticism from Republicans after he made the unprecedented move to try Ahmed Khalfan Ghailani in a civilian court earlier this year. Though Ghailani was convicted of conspiracy to damage or destroy U.S. property with explosives, he was acquitted of some 280 other counts, including murder, relating to his alleged role in the 1998 bombings of U.S. embassies in Africa.
Many Republicans blasted Holder for letting Ghailiani get off easy with a possible sentence of 20 years to life in jail, which they said would not have been the case if he was tried in a military court.
The inclusion of the provision prohibiting detainee transfers from Guantánamo would make it nearly impossible to try the self-proclaimed mastermind of 9/11, Khalid Sheikh Mohammed, in a civilian court.
The Guantánamo Bay provision is not the only controversial one in the CR — the bill would also permanently extend from 30 days to 90 days the time the Interior Department has to review offshore drilling licenses.
The provision provoked an angry Dec. 7 letter to senior Senate appropriators from panel members Mary Landrieu (D-La.) and Lisa Murkowski (R-Alaska).
The Senate is expected to take up the CR next week, at which point Senate Appropriations Committee Chairman Daniel Inouye (D-Hawaii) will attempt to amend it with an omnibus spending bill loaded with earmarks. That bill would provide about $19 billion more in spending than the House continuing resolution.
—Jordy Yager contributed.
This post was updated at 3:55 p.m.