President Obama has said it was Attorney General Eric Holder who decided to try Khalid Sheik Mohammed, the self-proclaimed 9/11 mastermind, and four other Guantanamo Bay detainees in civilian federal court in New York City. Yet, as a matter of law, that can't be true.
"You know, I said to the attorney general, 'make a decision based on the law,' " the president told CNN.
In Holder's testimony before the Senate Judiciary Committee, he confirmed that Obama had left it up to him: "This was a tough call, and reasonable people can disagree with my conclusion that these individuals should be tried in federal court rather than a military commission." He reiterated, "I made this decision."
If Holder and Obama are telling the truth, they have a problem.
The attorney general has no constitutional or statutory authority to unilaterally order the Defense Department to hand over military detainees so they can stand trial in civilian court. He can no more order the military to transfer such prisoners than he can order the Air Force to bomb a particular target. (Similarly, the defense secretary has no authority to order the Justice Department to do anything.)
Former Attorney General John Ashcroft noted this problem in an interview on Wednesday: "The attorney general doesn't have the authority to mandate that the secretary of defense turn somebody over to him and yield jurisdiction so that something that would have been done in a military setting is done in a civilian setting."
The only one who does have the authority is the superior of both the AG and the defense secretary: President Obama himself. (please continue reading here at NYP)