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Obama's Top Law Enforcer Is Preoccupied with Bush's War on Terror

In his confirmation hearing, Holder called waterboarding "torture," but his support for preventive detention and warrantless spying is bad news.

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While he condemned waterboarding, Holder stopped short of calling other harsh interrogation methods torture. When asked specifically by Sen. Durbin about stress positions, threatening detainees with dogs, forced nudity, and mock executions, Holder demurred, saying "I don't know enough about them."

Prosecutions v. 'Information-sharing'

It is also pretty clear that no prosections will come from the Department of Justice over the issue of torture, despite Holder's acknowledgement that waterboarding is torture, that it is illegal, and that the president does not have the authority to authorize violations of the law. "No one is above the law," Holder told Utah Senator Orrin Hatch. But, he said, " ... we don't want to criminalize policy differences that exist." But what if the policies themselves are illegal? And what, then, did he mean when he told the American Constitution Society last June that "we owe the American people a reckoning"? When asked that question specifically by Alabama Senator Jeff Sessions, Holder said, "that's gotten a lot more attention than I think it deserves." He did not mean to suggest that Bush officials should be prosecuted, he said, but rather he was talking about "information-sharing."

Holder's responses to the question of warrantless wiretapping gave even less to be optimistic about. "There are certain things that a president has the constitutional right that the legislative branch cannot impinge upon," Mr. Holder said, stressing that wiretapping had proven to be a critical intelligence tool. Like Obama, he said he supported the immunity provisions for telecoms as provided for by the Protect America Act of 2007.

"Mr. Holder's comments on his likely support for reauthorization of disturbing Patriot Act provisions and the overbroad FISA Amendments Act are of great concern," Caroline Fredrickson, Director of the ACLU Washington Legislative Office said in a press release following the hearing. "We hope in spite of these unfortunate and troubling comments, Mr. Holder will help to realign our broken system of checks and balances."

Coincidentally, Eric Holder's confirmation hearing came on the same day that a federal intelligence court released an unprecedented ruling -- made last August -- that was reported as a "validation" of the Protect America Act. As Eric Lichtblau wrote in the New York Times: "the decision marks the first time since the disclosure of the National Security Agency's warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government's wiretapping powers. In validating the government's wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration's repeated assertions that the president has the power to act without specific court approval in ordering national security eavesdropping that may involve Americans."

Senator Orrin Hatch noted the decision, as well as Lichtblau's article, at the hearing, requesting that it be submitted for the record. "This is a very significant decision," Sen. Hatch said. "… and your answers to me earlier seem to be consistent with this decision."

Liliana Segura is an AlterNet staff writer and editor of Rights & Liberties Special Coverage.