Eric Holder Unveils 'The Cake Doctrine'

Holder Discusses Obama Administration's Counterterrorism Efforts

U.S. Attorney General Eric Holder Discusses Obama Administration's Counterterrorism Efforts at Northwestern Law School March 5, 2012 (Photo by John Gress/Getty Images)

Speaking yesterday at Northwestern University the Attorney-General Eric Holder set out the clearest intellectual framework so far for the Obama administration’s evolving counterterrorism doctrine.

All good doctrines need a name and so I am going to take this opportunity to propose one for President Obama’s approach: ‘The Cake Doctrine.’

As in wanting to have your cake and eat it too.

The Cake Doctrine is an advance on the Bush Doctrine of pre-emptive self-defense in that President Obama has more faith in the courts and our system of justice than his predecessor did.


Obama Surrenders on Military Commission Trials

Attorney General Eric Holder announced earlier this afternoon that Khalid Shaikh Mohammed and four other alleged co-conspirators in the 9/11 attacks will face trial before military commissions rather than in federal court.

This announcement represents yet another disappointing political compromise by the Obama administration. The President came into office pledging to restore the United States’ global reputation by closing the detention facility at Guantanamo and doing away with the widely discredited kangaroo court system cobbled together by the Bush administration. That pledge died today.

The Attorney General said he would continue to push back against Congressional interference in the judicial process but, given the spineless performance of the government to date, I wouldn’t bet against Congress having the last word.

Military commissions have proved to be a colossal failure. They started off hopelessly weighted in favor of the prosecution. Constant revisions have addressed some but certainly not all such concerns; they have also generated a great deal of cynicism and confusion about the process.

In nine years the commissions have only heard six cases, four of which ended in plea deals. That represents less than 1% of the total detainee population that has passed through Guantanamo. So, in addition to lacking credibility, military commissions are neither tried nor tested.

By way of contrast, in roughly the same period, more than 800 individuals charged in terrorism-related cases have passed through the federal court system where the conviction rate is close to 90%.

In his press conference, Attorney General Holder described the federal courts as “an unparalleled instrument for bringing terrorists to justice.” This rather begs the question: Why has the administration not fought harder to win this battle?

The President and his administration should have been out in public fighting for federal court as the proper venue for these trials. Instead there has been a deafening silence from the White House over the past year. The President clearly decided to use his political capital elsewhere.

Coming, as it did, on the same day that President Obama announced his 2012 reelection bid, today’s announcement provided a timely reminder of just how little campaign promises are worth.

Book Him Danno

Last week Attorney-General Eric Holder wrote to Senate minority leader Mitch McConnell about the circumstances surrounding the arrest of underwear bomber Umar Farouk Abdulmutallab on Christmas Day 2009.

A plainly exasperated Holder sought to counter the hysterical reaction that greeted the decision to handle Abdulmutallab’s case within the criminal justice system with a few pertinent facts and a solid dose of common sense.

His letter is well worth reading for the insights it offers into the choices facing Americans as they seek to respond to future terrorist attacks.

The debate is not about whether or not the Obama administration has somehow applied a less robust approach to the underwear bomber than the Bush administration did to similar incidents.

It has not, despite Rudy Giuliani’s selective memory loss. Shoe bomber Richard Reid was treated precisely the same way in 2001. Both administrations allowed the law to take its course.

The more important debate is whether or not the law enforcement paradigm is the best method for handling such events. It is.

Much has been made in some quarters about the need to extract actionable intelligence without delay. This – much like that old chestnut, the ticking bomb scenario – is a meaningless rhetorical device routed in TV drama, not reality.

The idea that an apprehended suicide bomber like Abdulmutallab is likely to possess much actionable intelligence – that is, intelligence requiring an immediate operational response – is patently absurd.

Terrorist groups know that there is a fair chance any operation will fail and that their operative could be detained alive. Indeed, Al Qaeda has seen as many plots fail as it has succeed. SEE THE REST OF THIS POST

War Crimes in Afghanistan. Or: What You Don't Learn in Science Class

Physicians for Human Rights (PHR) demonstrated in a more than impressive way this week how science and technology can advance the cause of human rights. Using forensic analysis and satellite imagery, they did an excellent job in documenting a war crime—and the subsequent US supported cover-up—in Afghanistan, where in the wake of the US led invasion in 2001 hundreds of prisoners of war were killed by a US backed warlord and dumped in a mass grave in Dasht-e-Leili. Check out this must see video:

The New York Times has covered the story in an extensive piece last weekend. PHR has set up its own website, where you can also urge Attorney General Eric Holder to halt the cover-up.  The American Association for the Advancement of Science (AAAS)—who supported the project and with whom AIUSA’s own Science for Human Rights project has a longstanding partnership—also provided a detailed analysis of the gravesite and its cover-up. Here’s a quick summary of the story:

In 2002, PHR investigators discovered the presence of a mass grave site in Dasht-e-Leili, outside of the city of Sheberghan in northern Afghanistan.  The grave site is reported to contain anywhere from hundreds to thousands of Taliban prisoners of war. Forensic analysis suggests that most of the prisoners died from suffocation. They reportedly died while inside closed metal shipping containers.

Upon returning to the site in 2008, Stefan Schmitt, Director of PHR’s International Forensic Program, noticed that the mass grave might have been tampered with.  To gather additional evidence, PHR requested satellite imagery from the area, which showed two sizeable pits, compromising the original area. The satellite imagery obtained by the AAAS indicated that there was earth-moving equipment present on August 5, 2006 along with one of two new pits.  Later imagery on October 24, 2007, revealed the second pit in the same location as the earth-moving equipment from August 5.  

The left image shows the Dasht-e-Leili site on August 5, 2006, and indicates one open pit visible at the mass grave site, with two likely vehicles atop the area which would become the second pit. The right image shows the Dasht-e-Leili site on October 24, 2007, with both open pits visible. © 2009 Digital Globe. Images taken from


The Bush Administration discouraged any attempts to investigate the episode, as the warlord suspected of committing the crimes, Gen. Abdul Rashid Dostum, was on the C.I.A.’s payroll, while his militia worked alongside the United States Special Forces in 2001.  The Department of State has urged the Obama administration to oppose Gen. Dostum’s reappointment in the Afghani government; however the president has yet to take action on this issue.
As we still wait for the President to ensure accountability for past human rights violations of the Bush administration, this is another test of Obama’s commitment to human rights.  It will be interesting to see if the administration fully investigates the 2001 killings in Afghanistan, at a time when Obama is sending an additional 21,000 more troops to battle the increasing Taliban insurgency. A first response by Obama to PHR’s work seems at least promising.

Jacki Mowery contributed to this post

Guantanamo's Uighurs Coming to the US?

(Originally posted on Daily Kos)

On Wednesday, Attorney General Eric Holder gave the first public indication that at least some of the Chinese Uighurs cleared for release from Guantanamo in September 2008, but unable to return home to China for fear of persecution, will be allowed to settle in the United States. His announcement followed the visit of the European Union’s Counterterrorism Coordinator Gilles de Kerchove to US.

De Kerchove is believed to have delivered the blunt message to the Obama administration that, unless the US demonstrated its good faith by resettling the Uighurs on American soil, it was highly unlikely that any European country would be prepared to help in the dismantlement of the Guantanamo prison camp by accepting other discharged detainees.

The Uighurs were among 22 Chinese citizens of Uighur descent who were captured near Tora Bora towards the end of 2001. The circumstances of their capture is unclear although former detainee Abu Bakr Qasim has claimed they were handed over to US forces for a $5,000 a head bounty.

The men are alleged to be militant separatists affiliated with the East Turkistan Islamic Movement (ETIM) who had received weapons training at a camp in Afghanistan with the apparent objective of fighting against China for Uighur independence.

None took part in hostilities against the United States nor bore any apparent animosity towards the west. Indeed, Abu Bakr Qasim told reporters that he had expected the US to be sympathetic to his people’s cause.

In May 2006 five of the original group were released from Guantanamo and resettled in Albania although one, Adel Abdu Al-Hakim, has subsequently been allowed to relocate to Sweden.

The US government finally conceded in September 2008 that none of the remaining Uighurs in Guantanamo could be categorized as an ‘enemy combatant’ and in October the US District Court ordered the Uighurs released. They have been trapped in limbo ever since with no country prepared to offer them a home for fear of angering China.

The saga of the Uighars has only served to underline the comments made this week by Lawrence B. Wilkerson, former chief of staff to Secretary of State Colin Powell, in a guest post on The Washington Note. Wilkerson lambasted the ‘utter incompetence’ of the battlefield intelligence screening process that saw so many individuals who posed no threat to US interests transferred to Guantanamo and proclaimed to the American public as ‘the worst of the worst’.

In Wilkinson’s words:

Several in the U.S. leadership became aware of this lack of proper vetting very early on and, thus, of the reality that many of the detainees were innocent of any substantial wrongdoing, had little intelligence value, and should be immediately released… But to have admitted this reality would have been a black mark on their leadership from virtually day one of the so-called Global War on Terror.

Hundreds of detainees have been held in Guantanamo for an unconscionable length of time in defiance of international law and notions of due process. Wilkinson estimates that only two dozen or so could actually be considered terrorists. The rest have suffered long enough. The Obama administration must set an example and put right a wrong that has cast a long shadow over America’s global reputation. It can start by offering the Uighurs of Guantanamo a new home on American soil.