Research Briefing

Senate Judiciary Panel Supposed To Hear From Eric Holder Today, But Postponed Their Hearing; Is It Because His Steady Stream Of Missteps Raise Several Questions For Obama’s AG?

WHY WAS TODAY’S HEARING FOR “INCREASINGLY EMBATTLED” HOLDER POSTPONED? WERE OBAMA, DEMS AFRAID OF WHAT THEY WOULD HEAR?

“[A] Series Of Gaffes, Fights With Both Republicans And Democrats, And Apparent Disagreements Between Him And The White House Have Left Holder Looking Increasingly Embattled.” (“Holder’s Future Uncertain Amid Terror Trial Disputes,” AFP, 3/21/10)

Holder’s “Decisions Threaten To Derail His Career” As White House Gives Him “Little Backing” In Order To “Save The President’s Political Capital For Health Care.” “Eric Holder has spent much of his first year as attorney general trying to reverse a series of Bush administration policies. But the controversies provoked by his decisions threaten to derail his career … A senior Democratic congressional aide said Mr. Holder was given little backing from the White House, which wanted to save the president’s political capital for health care.” (Evan Perez, “In Holder’s Woes, A Déjà Vu,” The Wall Street Journal, 3/23/10)

Holder’s Scheduled Appearance Before Senate Judiciary Committee Today Postponed To April 14. “The Senate Committee on the Judiciary hearing on ‘Oversight of the U.S. Department of Justice’ scheduled for Tuesday, March 23, 2010 at 9:30 a.m. in Room 226 of the Dirksen Senate Office Building has been rescheduled for Wednesday, April 14, 2010, at 9:30 a.m.” (Senate Judiciary Committee, “Rescheduled – Oversight Of The U.S. Department Of Justice,” Press Release, 3/22/10)

HOLDER “EMBATTLED” BECAUSE HE FAILED TO PROMPTLY REVEAL CONFLICTS OF INTEREST ON TERROR CASES …

Holder Failed To Submit “About Seven Supreme Court Amicus Briefs” During Senate Confirmation Hearings Last Year. “Attorney General Eric Holder didn’t tell the Senate Judiciary Committee about seven Supreme Court amicus briefs he prepared or supported, his office acknowledged in a letter Friday, including two urging the Court to reject the Bush administration’s attempt to try Jose Padilla as an enemy combatant.” (Kasie Hunt, “More Holder Briefs Acknowledged,” Politico, 3/12/10)

• Holder’s DOJ Spokesman Matthew A. Miller Admits “The Brief Should Have Been Disclosed As Part Of The Confirmation Process.” (Charlie Savage and Bernie Becker, “Holder Failed To Disclose Brief On Detainee Policy,” The New York Times, 3/11/10)

Including 2004 Amicus Briefing On Terrorist Jose Padilla. “Holder didn’t mention the brief during his confirmation hearings to be Attorney General, even though the Senate Judiciary Committee questionnaire required him to list all Supreme Court amicus briefs he was party to. His questionnaire lists briefs in only three cases: Miller-El v. Cockrell, Johnson v. Bush and D.C. and Fenty v. Heller.” (Kasie Hunt, “Holder Under Fire For Padilla Brief,” Politico, 3/10/10)

• Padilla “One Of The More High Profile Terrorist Detention Cases During The Bush Administration Years.”  “Two of the briefs were related to Padilla’s case — one of the more high profile terrorist detention cases during the Bush administration years… Padilla, a U.S. citizen, sued after he was held without charge as an enemy combatant, and Holder’s first Padilla brief urged the Supreme Court to accept his case. The Bush administration eventually dropped its attempt to try him as an enemy combatant and Padilla was eventually tried and convicted in civilian court.” (Kasie Hunt, “Eric Holder Takes Heat From Senate Republicans On Jose Padilla Briefs,” Politico, 3/19/10)

Holder’s Brief Admits “Government Might Be Unable To Detain A Dangerous Terrorist Or To Interrogate Him Or Her Effectively” In Civilian System. “It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of executive power.” (Kasie Hunt, “Eric Holder Takes Heat From Senate Republicans On Jose Padilla Briefs,” Politico, 3/19/10; Brief Of Janet Reno, Et Al, Supreme Court Of The United States, No. 03 1027, 4/12/04)

BROUGHT LAWYERS WHO DEFENDED GITMO DETAINEES TO JUSTICE DEPARTMENT, POSSIBLY LETTING THEM DICTATE NATIONAL SECURITY POLICY …

In November, Holder Was Asked By Sen. Chuck Grassley (R-IA) To Disclose Other Appointees With Possible Conflict Of Interests. “There are attorneys at the Justice Department working on this issue who either represented Guantanamo detainees or worked for groups who advocated for them. This prior representation I think creates a conflict-of-interest problem for these individuals… Would you please provide that information to me and the committee?” Atty Gen. Holder: I will certainly consider that request …” (Sen. Chuck Grassley, Committee On Judiciary, United States Senate, 11/18/09)

One Month Ago, Holder Revealed That 9 Current Justice Department Political Appointees Previously Represented Or Contributed To Defense Of Alleged Terrorists. “To the best of our knowledge, during their employment prior to joining the government, only five of the lawyers who serve as political appointees in those components represented detainees… Four others either contributed to amicus briefs in detainee-related cases or were otherwise involved in advocacy on behalf of detainees.” (Office of the Assistant Attorney General, Letter To Senator Grassley, 2/18/10)

CLAIMED THAT OSAMA BIN LADEN WILL NEVER BE CAUGHT ALIVE WHEN OTHER MILITARY AND INTELLIGENCE OFFICIALS HAVE SAID OTHERWISE …

Holder Is Confident That Osama Bin Laden Will Never Be Caught Alive, And “Miranda Rights” Will Be Read To The “Corpse” Of Bin Laden. “‘Let’s deal with reality,’ Holder said. ‘The reality is that we will be reading Miranda rights to the corpse of Osama bin Laden. He will never appear in an American courtroom.’ Pressed further on that point, Holder said: ‘The possibility of catching him alive is infinitesimal. He will be killed by us or he will be killed by his own people so he can’t be captured by us.’” (Devlin Barrett, “Holder: Osama Bin Laden Will Never Face US Trial,” The Associated Press, 3/17/10)

But That Contradicts Top US And NATO Commander In Afghanistan, General Stanley McChrystal, Who Said The Objective Was To “Capture Him Alive And Bring Him To Justice.” “But the top U.S. and NATO commander in Afghanistan assured on Wednesday the objective was still to find bin Laden and bring him to justice. Not kill him. ‘We certainly would go after trying to capture him alive and bring him to justice. I think that is something that is understood by everyone’” General Stanley McChrystal said, briefing reporters in a teleconference.” (Reuters, “Would U.S. Forces Kill Or Capture Bin Laden?” 3/17/10)

And It Contradicts Obama’s CIA Director Leon Panetta, Who Said The Goal Is To Capture Bin Laden Alive To Question Him. “As for what might happen to al-Qaida leader Osama bin Laden if the U.S. gets hold of him, Panetta told the Post that ‘the most likely scenario’ would be taking him to a military facility ‘and we would then do the questioning.’” (Mark Memmott, “Al-Qaida Is ‘On The Run’ CIA’s Panetta Says,” NPR, 3/18/10)

STILL BELIEVES IN TREATING TERRORISTS AS COMMON CRIMINALS IN WAKE OF MISHANDLING CHRISTMAS DAY BOMBER …

Washington Post Editorial Board: Obama Administration’s Response To Attempted Christmas Day Terror Attack Was “Myopic, Irresponsible And Potentially Dangerous.”  “[The Obama administration had three options: It could charge him in federal court. It could detain him as an enemy belligerent. Or it could hold him for prolonged questioning and later indict him, ensuring that nothing Mr. Abdulmutallab said during questioning was used against him in court… It is now clear that the administration did not give serious thought to anything but Door No. 1. This was myopic, irresponsible and potentially dangerous.” (Editorial, “Did The Obama Administration Blow An Opportunity In The Flight 253 Case?” The Washington Post, 1/23/10)

Holder Made Decision To Give Christmas Day Bomber Miranda Rights. “Holder says he made the decision to read the underwear bomber suspect his Miranda rights...”  (Kasie Hunt, “Eric Holder: I Ordered Miranda Rights,” Politico, 2/3/10)

• But Obama’s Directors Of National Intelligence And National Counterterrorism Center WERE Not Consulted On “Mirandization” Of Christmas Day Bomber. SEN. JOHN ENSIGN (R-NV): “Admiral Blair, you said that this HIG was not convened. Who made the decision, since none of you were consulted? Who made the decision to go ahead and Mirandize the prisoner?” DIRECTOR OF NATIONAL INTELLIGENCE, DENNIS BLAIR: “It was a decision made by the FBI team; the agent in charge on the scene consulting with his headquarters and Department of Justice.” ENSIGN: “Who authorized him at the Department of Justice? How high up did this go?” BLAIR: “I don’t know, sir.” ENSIGN: “Do any of the rest of you know?” DIRECTOR NATIONAL COUNTERTERRORISM CENTER, MICHAEL LEITER: “I don’t know, Senator.” (Senate Homeland Security Committee, U.S. Senate, Hearing, 1/20/10)
  
  
• Nor Was Obama’s Homeland Security Secretary. ”At congressional hearings last month, Director of National Intelligence Dennis Blair and Homeland Security Secretary Janet Napolitano admitted they had not been consulted about the decision to Mirandize Abdulmutallab.” (Mike Allen and Kasie Hunt, “Underwear Bomber Talking Again,” Politico, 2/2/10)

And Holder Made Decision To Try Christmas Day Bomber As Common Criminal. “I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government.” (Eric Holder, Letter To Mitch McConnell, 2/3/10)

Yet Holder Still Believes Handling Of The Christmas Day Bomber “Was Done Well.” “I don’t necessarily disagree with you. I mean, I think the -- I think the operation on the 25th was done well. I think it was done even better post-December 25th in the interaction that we had with Abdulmutallab.” (Attorney General Eric Holder, Hearing Committee On Appropriations, 3/16/10)

No Wonder Holder Says Terrorists Should “Be Treated Just Like Any Other Murder Defendants … Have The Same Rights That A Charles Manson Would Have.” “‘These defendants charged with murder would be treated just like any other murder defendants,’ Holder said with evident exasperation. ‘The question is: Are they being treated as murderers would be treated? The answer to that question is, yes, they have the same rights that a Charles Manson would have.’ While Holder thought the Manson comparison would make Americans feel more comfortable with the idea of civilian trials for terrorism suspects, Rep. John Culberson (R-Texas) disagreed and sensed an opening. ’Osama bin Laden, in your opinion, has the same rights as Charles Manson?’ Culberson asked. ’In some ways, I think they’re comparable people,’ Holder said.” (Josh Gerstein, “AG: Bin Laden Won’t Be Caught Alive,” Politico, 3/16/10)  

MADE RASH DECISION TO TRY TERRORISTS IN CIVILIAN COURTS …

Holder Made Decision To Try 9/11 Terrorists In New York City. “Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks… The 9/11 cases that will be pursued in federal court have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia and will be brought in Manhattan in the Southern District of New York.” (Eric Holder, Attorney General Announces Forum Decisions for Guantanamo Detainees, 11/13/09)

But Holder Failed To Consult With Obama On Terror Trial Decision. Jim Lehrer: “So, you just told him what your decision was; you didn’t say, ‘What do you think about it, Mr. President?’” Holder: “Nope. Told him last night -- or had relayed to him what I was going to do last night while he was on Air Force One on his way to Asia.” (PBS’ “News Hour With Jim Lehrer,” 11/13/09)

Holder Failed To Consult With Homeland Security Secretary Janet Napolitano About The Terror Trials. Sen. Hutchison: “So, were you consulting in the beginning before the decision was made to bring them to New York for the trial?” Sec. Napolitano: “I was not, not in the sense of being consulted as to whether security concerns would preclude the ability to try them in New York, but I’m very comfortable with the decision to try them in New York.” (Senate Committee On Commerce, Science, And Transportation Hearing, 12/2/09, Video At 45:40 Mark)

And Holder Failed To Consult With New York Mayor Bloomberg Or NYPD Commissioner. “A spokesman for Mayor Bloomberg said the Mayor was only informed the morning when Attorney General Eric Holder made his announcement… NYPD Commissioner Ray Kelly said the Justice Department did not consult the city officials before deciding to send Khalid Sheikh Mohammed … to New York City for trial. ‘There was no consultation … with the police department…’” (Jonathan Dienst, “NYPD Commish: Nobody Asked Us About Hosting The 9/11 Trials,” NBC News-New York, 12/2/09)

CONTINUES TO SACRIFICE NATIONAL SECURITY FOR POLITICAL PURPOSES BY MOVING TERRORISTS TO AMERICAN SOIL …

Holder Leading The Effort To Shut Down Guantanamo Detainee Facility. “President Barack Obama has tasked Holder with leading the new administration’s effort to close the detention facility within a year, and the department will play a key role in determining which detainees to try and how. Justice officials say Holder’s Covington ties will have no effect on his involvement in policy issues, but he will have to sit out charging decisions and prosecutions should they arise in cases specifically involving Covington clients.” (Joe Palazzolo, “Some Justice Department Lawyers Have Gitmo Conflicts,” The Legal Times, 3/2/09)

But According To A USA Today/Gallup Poll, “Americans Oppose The Closing Of Gitmo By More Than A 2-To-1 Margin.” (David Morgan, “The First Draft: Poll Shows Growing U.S. Support For Afghan Troop Increase,” Reuters’ “Front Row Washington“ Blog, 11/25/09)

In 2008, Holder Called Guantanamo Bay Detention Center “An International Embarrassment.” “‘We have quite frankly lost our way,’ Holder said, calling for the U.S. to close the detention center at Guantanamo Bay (‘an international embarrassment’); declare that it is the law, policy and practice that the U.S. does not torture people or subject them to cruel or inhumane treatment; end the practice of rendition; and stop any warrantless domestic surveillance.” (Jake Tapper, “Holder V. Bush On War On Terror Tactics,” ABC News, 11/18/08)

Calling The Policies That Kept Us Safe As “Needlessly Abusive and Unlawful.” “‘Our needlessly abusive and unlawful practices in the “War on Terror” have diminished our standing in the world community and made us less, rather than more, safe,’ Holder said.” (Jake Tapper, “Holder V. Bush On War On Terror Tactics,” ABC News, 11/18/08)

AND SUPPORTS PROSECUTION OF MILITARY AND INTELLIGENCE PERSONNEL RESPONSIBLE FOR KEEPING AMERICA SAFE

In April, Holder Said He Was Open To Allowing A Court In “Any Country” To Prosecute American Military Personnel. “A court in Spain has today opened an investigation into torture allegations against US military personnel at the Guantánamo detention centre… [Attorney General Eric Holder] signalled the Obama administration might cooperate with the Spanish investigation… ‘Mistakes were made’ in the creation of the Guantánamo programme, Holder said. ‘Obviously, we would look at any request that would come from a court in any country and see how and whether we should comply with it.’” (Giles Tremlett, “Spanish Court Opens Investigation Of Guantánamo Torture Allegations,” The Guardian, 4/29/09)

In August, Holder Urged President Obama To Reopen Investigation Into CIA Interrogation. “Conservatives and liberals alike reacted critically, though for different reasons, to Attorney General Eric Holder’s decision to appoint a federal prosecutor to investigate possible abuses by CIA interrogators in using harsh tactics on terror detainees. Holder on Monday appointed federal prosecutor John Dunham to look into abuse allegations after the release of an internal CIA inspector general’s report…” (“CIA Probe Angers Those On Right And Left,” The Associated Press, 8/25/09)

• Despite Objection From Seven Previous CIA Directors. “[T]he administration must be mindful that public disclosure about past intelligence operations can only help Al Qaeda elude U.S. intelligence and plan future operations. Disclosures about CIA collection operations have and will continue to make it harder for intelligence officers to maintain the momentum of operations that have saved lives and helped protect America from further attacks.” (Michael Hayden, Porter Goss, et-al, Letter To President Obama, 9/18/09)