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Will Eric Holder Shift Justice Away From The Bush Model?
Barack Obama looks likely to pick Eric Holder -- who during the Clinton administration held the number two post at Justice -- to be his next attorney general.
Under Bush, as TPMmuckraker has chronicled, the department was subjected to an unprecedented degree of politicization, and generally exhibited a striking lack of independence from the priorities of the White House -- problems for which ex AG Alberto Gonzales, who had been George Bush's personal attorney in Texas, was ultimately forced to resign.
So we've combed through Holder's record of public comments to see whether, on these crucial issues, he seems likely to continue what Bush started, or to reverse it. Here's what we found:
For one thing, unlike Gonzo -- and despite Holder's failure to stop Clinton's last-minute pardon of the financier Marc Rich, for which he's already begun receiving heat -- he doesn't seem likely to be the president's stooge.
As The American Lawyer wrote in a profile this year, Holder was independent enough that he advised then-AG Janet Reno to allow the widening of Ken Starr's investigation into the Monica Lewinsky affair -- which ultimately led to Clinton's impeachment.
And in a 2006 interview with National Journal for a story about Gonzales' performance as AG, Holder called the attorney general "the one Cabinet member who's different from all the rest." He continued: "The attorney general serves first the people, but also serves the president. There has to be a closeness, at the same time there needs to be distance."
Holder also seems less willing than his potential predecessors under Bush to take an expansive view of presidential power.
In 2004, Holder told CNN:
"If you're going to listen in on attorney/client conversations, as we did in the Clinton administration, the difference was we asked a judge to authorize it as opposed to simply saying we in the executive branch by ourselves can do this without any supervision by a judge. You also need to report to Congress on a regular basis to let them know what you're doing under the act."
Two months later, introducing (pdf) Al Gore at an American Constitution Society (ACS) discussion of "Institutionalized Dishonesty in the Bush Administration," Holder observed:
Military success and respect for civil liberties can -- and in fact, they must -- coexist. In achieving victory, we must not lose our nation's soul.
He added:
And we must also be mindful of the tactics we employ because the contemporary world, and ultimately history, will judge us only--not only by the magnitude of our inevitable victory, but also by the manner in which it was won.
And this June, in another speech at ACS, he spoke out against the Justice Department's stance on torture and the Geneva Convention:
I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture and that acts that are merely cruel, inhuman and degrading are consistent with United States law and policy, that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention, never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the rule of law is not only wrong, it is destructive in our struggle against terrorism.
Still, as Salon's Glenn Greenwald has noted, Holder hasn't always taken that position. In January, 2002 -- admittedly, during a period when 9/11-induced panic was prompting a lot of otherwise smart people to take a hard line on these questions -- he told CNN:
One of the things we clearly want to do with these prisoners is to have an ability to interrogate them ... Under the Geneva Convention ... you are really limited in the amount of information that you can elicit from people.
In other words, despite some blemishes, it seems likely that under Holder, DOJ will begin a much-needed shift back towards being the non-partisan, independent law enforcement agency that, until Bush, it was known as.
Josh
Zachary
That last quote is scary and post-9/11 panic doesn't justify that kind of twisted reasoning. Is it so hard to find a future AG with a principled stand on torture? It's not like this is a side issue!
November 19, 2008 5:09 PM | Reply | Permalink
Read the whole interview. The money quote:
November 19, 2008 5:14 PM | Reply | Permalink
"almost consistent"?
_____
Lawyer-speak for: anything goes.
November 21, 2008 10:00 AM | Reply | Permalink
I don't see that statement as advocating torture, just as a desire to classify prisoners taken in Afghanistan and Iraq as something other than POWs. Under the Third Geneva Convention, POWs are only required to give name, rank, date of birth, and serial number. They can be interrogated to try to get further information, but the Third Geneva Convention disallows putting any pressure on them to do so.
If, however, you can establish that the prisoner does not qualify as a POW (falling, likely under the provisions of Article 5 of the Fourth Geneva Convention, which applies to spies and saboteurs), then you have a little more latitude, and can even put the prisoner on trial. You are still required to treat the prisoner with humanity, and if the prisoner is put on trial, such trial must be "fair and regular."
November 20, 2008 1:04 PM | Reply | Permalink
NO class of persons is exempt from the PROTECTIONS of the Geneva Conventions. Thus those who are not POWs are more properly treated as innocent civilians.
What efforts were made to determine the proper classification of those captured in, as central example, Afghanistan? Apparently none by the Bushit criminal enterprise, though it was known from the outset that many of those "captured" on the battlefield were actualy SOLD FOR CASH by their enemies, or the merely greedy, having been nothing more than shephards who happened to be in the wrong place at the wrong time.
November 21, 2008 9:44 AM | Reply | Permalink
My faith in the DOJ will be restored when our own war criminals in the White House are prosecuted.
Until then, we can strike "all men/Americans are created equal" from the Constitution and also strike "justice for all" (which also means 'accountability for all')from the "Pledge to the Flag."
You don't have to be a blind conservative not to see it, just an ignorant one to deny it.
November 19, 2008 7:16 PM | Reply | Permalink
My faith in the DOJ will be restored when our own war criminals in the White House are prosecuted.
YES YES YES! Being magnanimous about Lieberman for pragmatic reasons is one thing, but there's absolutely no excuse for not appointing special prosecutors for everything from Siegelman to the US Attorney scandal to the war-profiteering and raping of female contractors in Iraq to the death of Pat Tillman.
... unless Obama plans to commit his own felonies and wants to set a precedent for leniency.
I have no beef with this particular AG choice, but he damned well better not be instructed to be "magnanimous" about the crimes of the last 8 years.
November 19, 2008 7:45 PM | Reply | Permalink
"My faith in the DOJ will be restored when our own war criminals in the White House are prosecuted."
There's the big picture, then there's a lot of little pictures. The problem with focusing on the little pictures--as much as we would like to do this--is they can quickly obfuscate the big one.
Not that it wouldn't be lovely to see some of the people who have damaged us so much on a perp walk. It's just not worth it if the resulting ambient noise would derail the bigger objectives. Everybody faces their maker eventually, and nobody gets out for free.
Lets move on.
November 19, 2008 9:12 PM | Reply | Permalink
NO, NO, NO. There is no "bigger picture." I understand the desire to get things done, like getting the economy moving, fighting global warming, un-occupying Iraq. But the biggest picture is "What Kind of a Nation Are We?" Do we commit torture? The only way I can see to walk back the evil that we have committed and the damage to our national soul is to hold the torturers and their masters responsible. We might do that with a "truth and reconciliation commission," rather than by prosecution, but we cannot simply sweep it under the rug, set a better example for the next four or eight years, and hope it won't happen again. There must be consequences serious enough to restore our national consensus against war crimes and torture and to dissuade future presidents from such criminality.
November 20, 2008 7:45 PM | Reply | Permalink
Everybody faces their maker eventually,
_____
Which presumes, without evidence, that there is a "maker".
This country was founded in the name of atheism and agnosticism, not pie-in-the-sky later-on-justice. Ours is "A system of laws, and not of [religiogibberish]" (John Adams). The law doesn't enforce itself, and we don't "blow off" the injuries and deaths inflicted upon the innocent simply because those innocents don't happen to be white.
November 21, 2008 9:56 AM | Reply | Permalink
"The problem with focusing on the little pictures--as much as we would like to do this--is they can quickly obfuscate the big one."
I suppose you are refering to the economy and Iraq as the bigger picture and I will agree that those are Obama's first priorites.
But the war crimes committed by the Bush White House are not little, and it is the job of the DOJ to prosecute them.
If Eric Holder is not going to prosecute them (and there seems to be an especially good case for charges of illegal torture) then the DOJ will be just as useless then as it is now under Mukasey (who has shot to hell his own reputation).
November 19, 2008 9:21 PM | Reply | Permalink
WELL, LETS HOPE SO!!!!!
November 19, 2008 9:36 PM | Reply | Permalink
Home fries>>>nonsense. The bigger picture is upholding the constitution and executive power abuses. There will never be a reason strong enough to demand impeachment if these thugs are allowed to get away with their law breaking corruption. Presidents will never have to worry about accountability for their actions in the future if nothing is done about these obvious abuses of power. The restoration of our democracy demands accountability. Just because we have a new president not doing these things presently doesn't mean we won't have one in the future who sees there is never accountability for any actions a president takes based on this Bush period.
THIS IS NOT A SMALL PICTURE you so easily minimize with your move on. It's like saying "they are dead mam and punishment for their murderers won't bring them back so let's just move on". Obviously you lost nothing dear to you from these LIES of exchanging lives for profits but I find your remarks insulting. Our cowardly leaders pissed on the constitution and justice for political expediency...they lost nothing either. Thousands are dead displaced and disabled, trillions lost, and hundreds tortured and destroyed...but what the hell right. Mustn't let any of that interfere with policy making. We cannot ignore crimes and then talk of justice when we have time for it. Both can be done at the same time. Think of it as one extra large picture ...fragmented. Otherwise you just have an economy for warmongering thieving murderers to fix.
November 20, 2008 2:26 AM | Reply | Permalink
I hope he does reverse the standard DoJ policy of obstructing justice perhaps he'll help me with my ongoing issues with them http://www.daprocess.com
November 20, 2008 3:41 AM | Reply | Permalink
I am content with most of Obama's picks and alleged picks, but I feel deeply uneasy about Holder. His tacit approval of the Marc Rich pardon just really sticks in my craw. I think it says a lot about the man. Either he doesn't pay attention (and that is absolutely fatal in an attorney general) or he's too subservient to the president's wishes--to the point of overriding conscience and good sense.
I hope for the best from him, but...
November 20, 2008 4:44 AM | Reply | Permalink
You clearly know nothing about the Marc Rich pardon not fed to you by the far-right lunatic fringe meda, and those in the "mainstream" media who jumped on the anti-Rich hysteria-bandwagon.
DO YOUR HOMEWORK re. the role Guliani -- and "Scooter" Libby -- had in the Marc Rich case.
November 21, 2008 10:04 AM | Reply | Permalink
If you want to get a sense of
Eric Holder's current opinions
about restoring the rule of law,
watch his 20-min. keynote address
at the American Constitional Society
this past June:
http://acslaw.org/node/6720
November 20, 2008 5:30 AM | Reply | Permalink
WHEN you talk about WAR CRIMES, don't limit the discussion to WAR CRIMES COMMITTED AT GITMO.
WHAT ABOUT WAR CRIMES committed against US CITIZENS?
WHAT ABOUT CHIPPING AND TORTURING THOMAS S. BEAN as he was typing out a civil suit and MOTION FOR INJUNCTIVE RELIEF?
WHAT about the TORTURE AND ILLEGAL PIN HOLE SPY CAMERA MONITORING OF an innocent medical doctor named DR MARK GORDON, who was "stalked, maliciously prosecuted for DUI, Brady violations using "citizen rule exception to Exclusionary Rule to rationalize the Brady Violations by DAVE NELSON, Minnehaha Cty States Attorney in Sioux Falls, South Dakota?
What about SIOUX FALLS FBI COUNTERINTELIGENCE AGENT STEVEN PLUTA running an illegal unconstitutional SUBLIMINAL COUNTERINTELIGENCE DEBREIFING OF THOMAS S. BEAN because:
----Bean signed a 47 page US DOJ OIG--FBI OPR COMPLAINT mentioning the RCMP warrant for FBI AGENT TERRY NELSON'S MONTANA DRUG PIPELINE, with Racicot obstructing and laundering the money into GOP campaigns as GOP treasurer?
----Bean signed and tendered ten page memo to Senator Grassley...to open up the NSA TSP scandal;
----Bean tipping SFPD to FBI'S FALSE FLAG CONSPIRACY TO BLOW UP THE MURRAY BUILDING using McVeigh...with GAGEN reporting to DENVER US MARSHALLS that he saw the Iraqis with MURRAY BUILDING SCHEMATICS, C4, AND DETENATORS?
November 20, 2008 12:46 PM | Reply | Permalink
Loon.
It's spelled Murrah.
November 21, 2008 10:07 AM | Reply | Permalink
One thing this story fails to mention is the memo Holder wrote to all of the U.S. Attorneys in 1998 suggesting that they give greater priority to prosecuting obscenity and child pornography. I have no problem with targeting child porn, but "obscenity" is so ill-defined in the law that it amounts to a witchhunt for sexual activities that a prosecutor just doesn't like. This bodes very poorly for his dedication to supporting free speech.
November 20, 2008 2:14 PM | Reply | Permalink
After putting up with the absolute incapable, corrupt and useless Gonzales for years ... only to be replaced with the more inept Mukasey ...I believe anyone has got to be better. Thus far Obama has sold me on the premise he knows what he is doing. He definitely conveys he has a plan and definitely knows the needs for the country. With that in mind I find myself trusting him on this pick.
November 20, 2008 3:03 PM | Reply | Permalink
Yes, there are plenty of gov employees that can take on multiple actions that need to come from the DOJ.
The very idea of ignoring the Bush-crimes in order to "move along" is simply self-serving CYA trash talk from the criminals.
November 20, 2008 5:15 PM | Reply | Permalink
This post is by and large so uninformed as to be FOXian amatuerism. For one:
"Barack Obama looks likely to pick Eric Holder -- who during the Clinton administration held the number two post at Justice -- to be his next attorney general."
"His" attorney general? Doesn't the gov't consist of We the people? Aren't gov't officials PUBLIC EMPLOYEES?
For another:
Who was Obama's AG before this "next" one?
And for another:
1. Marc Rich was represented for pardon by Atty. L. "Scooter Libby," who as you might recall was not a Democrat.
2. Marc Rich was convicted of, among other things, violations of a tax law. Not only Libby, but three lawyers in the DOJ whose job it was to evaluate pardon petitions agreed that the application of the tax law said to have been violated had been distorted in order to be applied by a US AG named Rudy Guliani.
3. Marc Rich did not receive -- FOX's fake "news" notwithstanding -- a "pardon," as in, a complete pardon. RAther, he was pardoned of that part of the conviction which resulted from the distortion of law in order to charge and convict; and an increasedly-stringent requirement concerning civil conviction.
Stop pretending to be some sort of "journalist" who considers all that is necessary to that end is to gather together all past distortions and fabrications, then get them into conventional order, then post the result. Expecially as concerns the Marc Rich SMEARS against Clinton (and Rich, and Rich's wife), DO YOUR HOMEWORK by researching the UNDERLYING facts of the pardon.
November 21, 2008 9:52 AM | Reply | Permalink
"If you're going to listen in on attorney/client conversations, as we did in the Clinton administration, the difference was we asked a judge to authorize it . . . ."
_____
Attorney-client relationships are sacrosanct: there is never any justification, overseen or not, to "listen in" on such conversations.
November 21, 2008 9:59 AM | Reply | Permalink