Preliminary facts and thoughts about Eric Holder

Is Obama's likely nominee for Attorney General an encouraging sign for advocates of the Constitution and the rule of law?

Published November 19, 2008 11:43AM (EST)

(updated below - Update II)

Even before there has been a single Cabinet selection announced, I'm already weary from all the gossip and chatter about potential appointees, but, at least for me, the position of Attorney General is different.  So much of the anti-constitutional abuses and radicalism of the last eight years emanated from the Justice Department, and few things will have more of an impact on what the Obama administration does about them than the views, integrity and independence of the new Attorney General, who looks to be Eric Holder, Deputy Attorney General in the Clinton administration and, very briefly, Acting Attorney General.

The bulk of what I've read about and from Holder suggests, with a couple of ultimately marginal exceptions, that this appointment would be a very positive step.  Digby yesterday quoted at length from an impassioned speech Holder gave in June of this year in which he condemned Guantanamo as an "international embarrassment"; charged that "for the last 6 years the position of leader of the Free World has been largely vacant"; complained that "we authorized torture and we let fear take precedence over the rule of law"; and called for an absolute end both to rendition and warrantless eavesdropping.  He proclaimed that "the next president must move immediately to reclaim America's standing in the world as a nation that cherishes and protects individual freedom and basic human rights."

What's notable about this speech, in my view, is that the points he's making go well beyond standard Democratic Party boilerplate on these issues.  More revealingly, the rhetoric he used is rather unconstrained for Washington, suggestive of actual passion and conviction on these matters.  As Hilzoy put it, the speech is notable "not just for the position he takes, but for his forthrightness and lack of equivocation."

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Mitigating the importance of that speech is that it was delivered when Holder was already part of Obama's campaign and Obama had already secured the nomination.  I tend to view as more important what Holder said and did before he had any connection to a campaign and was speaking only as a private citizen, not beholden to any campaign talking points. 

After the last eight years, perhaps the most important aspect in assessing a nominee for Attorney General -- more important than any specific views on particular issues -- is the conception he has of the role of the Attorney General, and particularly the need for independence from the President. Here is what Holder told National Journal, on March 3, 2006, regarding the confirmation of Alberto Gonzales as Attorney General:

The attorney general is the one Cabinet member who's different from all the rest.  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.

It's Holder's independence -- his "distance" -- which very well might be his most attractive attribute.  Holder isn't some long-time friend and associate of Barack Obama's from Chicago.  They only met for the first time four years ago.  Unlike Alberto Gonzales and George Bush, their careers haven't been intertwined and Holder hasn't been dependent upon Obama for his political identity.  He's already been Deputy Attorney General and Acting Attorney General long before he even met Obama. 

One could reasonably argue (as Jeralyn Merritt has) that even Holder's involvement in Obama's campaign makes him already too close to Obama to maintain the necessary independence, but I don't think that's true.  Holder's stature and record of high accomplishment exists completely independent of Obama, and his ascent to national prominence long precedes any involvement with Obama.  That's vital.

Equally encouraging are Holder's general views on the core principles of executive power and the Justice Department. In April, 2004, Holder went on CNN to speak about Bush's DOJ -- before many of the worst abuses, such as the NSA spying program and Patriot Act abuses were even known, and at a time when very few people were strongly criticizing Bush's executive power abuses -- and affirmed some rather vital principles for the DOJ that many key Beltway Democrats were avoiding like the plague:

HOLDER:  When you look at some of the things that have done under the spirit of the [Patriot] Act, where you detain citizens without giving them access to a lawyer, where you listen in on attorney-client conversations without involving a judge, these are the kinds of things that have been done in the name of the Patriot Act by this administration that I think are bad ultimately for law enforcement and will cost us the support of the American people which is a vital tool to be successful in this war on terrorism . . .

I think in a lot of ways, the problem that I had with the enforcement of the act is that this administration said essentially trust us. We're not going to involve judges, we're not going to report to Congress on what we're doing, and I think our history has shown us that we are best when we operate as people governed by the law as opposed to putting our trust in people and that's the problem I have.

You have to deal with this whole question of secrecy and the way in which the administration has conducted itself. You need to involve judges. If you're going to look at business records or library records, this should not be something that's simply done by the executive branch without the involvement of judges.

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.

I've been really surprised to see this attorney general [John Ashcroft], a former senator, who has been extremely reluctant apparently to get up on Capitol Hill and talk about it. Even if it's in the intelligence setting where the public doesn't necessarily hear, been reluctant to share information about the way in which he has enforced the Patriot Act. 

Particularly for 2004, that was way out in front of what most establishment Democrats were willing to say.  That was as clear and unequivocal a rejection of unilateral assertions of executive power and surveillance authority as one could find among Washington establishment figures (it still is), and was a very compelling affirmation of some of the core principles that are in urgent need of restoration.

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Having said all of that, Holder took some rather disturbing positions very early on after 9/11.  In that regard, the most disturbing part of Holder's background are his comments in the immediate aftermath of 9/11 concerning the legal status of "War on Terror" detainees.  In January, 2002, Holder appeared on CNN with Paula Zahn to discuss the divergence of opinion among, on the one hand, Donald Rumsfeld, who insisted that Guantanamo detainees were not entitled to "prisoner of war" status under the Geneva Conventions, and on the other, Colin Powell, who was arguing that they were.  At least back then, Holder seemed to side with Rumsfeld:

HOLDER:  One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohammed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not. 

Holder went on to say that Powell's concerns that detainees be treated in a humane fashion were legitimate because doing so would be important in how our own captured troops were treated, but nonetheless reiterated that "War on Terror" detainees are not entitled to Geneva protections:  

I think the way to resolve it is, in fact, the way Secretary Powell has proposed, which is to say these are not people who are prisoners of war as that has been defined, but who are entitled to, in our own interests, entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention.

In 2006, the position espoused by Holder, Rumsfeld and the Bush administration was rejected by the Supreme Court in Hamdan, when it ruled that even Al Qaeda detainees are entitled to the minimum protections afforded to all detainees by Common Article 3 of the Geneva Convention.  Ironically, the account of Holder's ACS speech that Digby cited (I haven't been able to find the full text of Holder's speech) claims that Holder said "it was disgraceful that the Supreme Court 'had to order the president to treat detainees in accord with the Geneva Convention'" -- a criticism that would also seem to apply to Holder's early view that detainees were not entitled to Genvea protections.  

Several days before that January, 2002, appearance, Holder -- also on CNN -- seemed somewhat receptive to the idea of indefinite detentions of non-U.S.-citizens, though there was no discussion of whether they would be entitled to procedures to contest their guilt:

BLITZER: As opposed to John Walker, these are not U.S. citizens. There may be a few British citizens there, but what happens to these guys? Are they just going to stay at Guantanamo Bay forever?

HOLDER: Interesting question. It seems to me you can think of these people as combatants and we are in the middle of a war, and it seems to me that you could probably say, looking at precedent, that you are going to detain these people until war is over, if that is ultimately what we wanted to do.

I think you have a basis for saying that. We had the Vietnam War, we had World War II, people were captured during the course of that war were not repatriated until the conclusion of the conflict. So, it's possible they could be there for an extended period of time.  

I personally discount -- not entirely but somewhat -- what people said and did in the immediate aftermath of the trauma of 9/11, and I consider January, 2002 to be part of that period.  Many people who have ended up as important advocates for the Constitution and the rule of law made some early statements and formed some positions, undoubtedly attributable to the emotional impact of 9/11, that they came to regret.

Holder's remarks came before there were any reports of the extremism and abuse that the Bush administration was planning.  As that became more apparent, and as the emotional impact of 9/11 receded, Holder clearly changed his views on these topics and reversed himself rather thoroughly.  It's true that these early positions evinced some poor judgment and instincts, and everyone can decide for themselves how much weight to give that in light of his subsequent strong and eloquent advocacy on behalf of Constitutional protections and the rule of law.

* * * * *

Several other issues are worth noting.  Holder's involvement in the sleazy Marc Rich pardon is definitely a blemish, though, given his peripheral role, it's a relatively minor one.  Beyond that, Jeralyn Merritt yesterday detailed some absurdly harsh views Holder has previously expressed regarding punishment for marijuana distribution and mandatory minimum sentences, but unfortunately, inane support for the "War on Drugs" is -- for now -- about as absolute an orthodoxy as it gets in the Washington establishment.  As but one example, there are few people in America with a worse record supporting Draconian drug laws than Joe Biden.  Independently, in an interview with George Stephanopoulos on ABC News in March of 2002 to discuss the case of Zacarias Moussaoui, Stephanopoulos said that, in general, Holder was "personally opposed to the death penalty."

I've seen some attempts to criticize Holder based upon clients he has represented while in private practice, most notably his defense of Chiquita Brands in a criminal case brought by the DOJ arising out of Chiquita's payments and other support to Colombian death squads.  Attempts to criticize a lawyer for representing unsavory or even evil clients are inherently illegitimate and wrong -- period.   Anybody who believes in core liberties should want even the most culpable parties to have zealous representation before the Government can impose punishments or other sanctions.  Lawyers who defend even the worst parties are performing a vital service for our justice system.  Holder is no more tainted by his defense of Chiquita than lawyers who defend accused terrorists at Guantanamo are tainted by that.

All of this is preliminary.  It's possible -- even likely -- that more facts will emerge that further shape the assessment of the choice of Holder, one way or the other.  He should be asked about his views of holding Bush officials accountable for lawbreaking.  He was undoubtedly involved with polices at the Clinton DOJ that many civil libertarians will oppose.  Some of those early post-9/11 comments are definitely disturbing.  And one can never really know what someone will do with power until they wield it.  But on balance -- particularly in light of what he was saying regarding the most extreme Constitutional and executive power abuses of the last eight years and, more importantly, how he was saying it -- this choice, as a preliminary matter, seems like a step in the right direction.


UPDATE:  Commenters have raised two additional areas of possible concern regarding Holder:

(1) The role he played, if any, in the seizure of Elian Gonzalez, which liberal Law Professor Laurence Tribe -- despite believing that Elian belonged with his father back in Cuba -- condemned as having been effectuated with no legal basis whatsoever, and thus "violated a basic principle of our society, a principle whose preservation lies at the core of ordered liberty under the rule of law."  I don't know what Holder's involvement in that was, and I haven't really focused before on the legal issues raised by Tribe, but that clearly compels some examination as part of the confirmation process; and,

(2) Holder's advocacy, in the wake of the 1999 Columbine shooting, of what he called "reasonable regulations in how people interact on the Internet."  The reports about what Holder was advocating are vague, and that was almost 10 years ago, but this is also certainly something that ought to be explored with Holder.


UPDATE II:  Contrary to what several commenters have suggested, it seems clear that Holder -- in the 2002 interview -- was not merely arguing that Guantanamo detainees should be denied "prisoner of war" status.  He was arguing, explicitly, that they were entitled to no Geneva protections of any kind (as he put it:  "they are not, in fact, people entitled to the protection of the Geneva Convention").  See here and here for further elaboration.

By Glenn Greenwald

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