POLITICS
04/27/2010 05:12 am ET | Updated May 25, 2011

Holder, Gates Raise Constitutional Concerns About Terror Trial Funding Legislation

As Congress gets set to re-consider legislation that would cut off funding for terrorism trials in federal civilian courts, key members of the Obama administration have penned a letter to House leadership in both parties, raising constitutional concerns about the move.

Writing to House Speaker Nancy Pelosi (D-Calif.) and Minority Leader John Boehner (R-Ohio), Defense Secretary Robert Gates and Attorney General Eric Holder declared that the "exercise of prosecutorial discretion has always been and should remain an Executive branch function."

"We believe it would be unwise and would set a dangerous precedent for Congress to restrict the discretion of our Departments to carry out specific terrorism prosecutions," they add.
"Indeed, we have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes."

Gates's name on the letter adds a bit of significance to the message -- as Holder has argued this position before and Gates has a lengthy Republican pedigree. But the politics of terror trials has soured so much that Hill observers seriously think they have the votes to restrict funding for civilian trials.

Sen. Lindsey Graham (R-S.C.) is putting out the most prominent piece of legislation together despite the fact that purview over the purse lies in the House of Representatives.

HERE IS THE FULL LETTER:

Dear Speaker Pelosi and Minority Leader Boehner:

We write to express our opposition to any legislation or amendments that would restrict the ability of the Executive branch to effectively prosecute alleged terrorists in Federal courts or reformed military commissions in the United States.

As you know, both the Department of Justice (in Article III courts) and the Department of Defense (in military commissions, reformed under the Military Commissions Act of 2009) have responsibility for prosecuting alleged terrorists, and we ensure that all relevant factors are carefully considered when determining the appropriate forum in which to try a particular case.

Furthermore, Congress has voted on multiple occasions to permit detainees currently held at the detention facility in Guantanamo Bay, Cuba, to be transferred to the United States for prosecution in either Federal courts or reformed military commissions.

The exercise of prosecutorial discretion has always been and should remain an Executive branch function. We believe it would be unwise and would set a dangerous precedent for Congress to restrict the discretion of our Departments to carry out specific terrorism prosecutions.

Indeed, we have been unable to identify any precedent in the history of our nation in which Congress has intervened in such a manner to prohibit the prosecution of particular persons or crimes

In order to protect the American people as effectively as possible, we must be in a position to use every lawful instrument of national power - including both courts and military commissions - to ensure that terrorists are brought to justice and can no longer threaten American lives.

Robert M. Gates
Secretary of Defense

Eric H. Holder, Jr.
Attorney General