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

As Obama's attorney general nominee Eric Holder sails toward confirmation, one thing is clear: United States law and justice will continue to be seen through the Bush-era lens of the so-called "War on Terror," long after Bush vacates the Oval Office. In fact, according to Holder, not only are we at war now, we were at war before September 2001 (as evidenced by the attacks on the USS Cole and on American embassies abroad) -- we just "did not realize we were at war." Although the phrase "war on terror" was conspicuously absent from the all-day hearing before the Senate Judiciary Committee on Thursday, this fact alone bears tremendous weight on the change Obama's Department of Justice will -- or will not -- bring.

Much of the coverage from yesterday's hearing zeroed in on torture, and indeed, Holder's headline-generating answer on the question of waterboarding -- which he bluntly labeled torture -- deserved a certain amount of praise, especially given recent memories of the preposterous testimony by Alberto Gonzales a few years back. (As Illinois Senator Dick Durbin recalled, "we could never ever get a straight declarative sentence.") Holder also deserves credit for refusing to fall for the trap laid by Texas Senator John Cornyn, who asked whether he would authorize waterboarding a suspect under the bogus "ticking time bomb scenario" of the sort popularized by the FOX series 24. "People will say almsot anything to avoid torture," Holder responded, rejecting the notion that torturing a suspect would necessarily provide life-saving information.

But Holder also made it clear that he believes we are living in dangerous times, and thus his first goal will be to "strengthen the activities of the federal government and protect the American people from terrorism." "Nothing I do is more important," he said. "I will use every available tactic to defeat our adversaries, and I will do so within the letter and the spirit of the Constitution."

There is nothing wrong a top-level law enforcement official asserting his intention to keep Americans safe. But the attorney general is not a defense official, nor is the Department of Justice the Pentagon. Holder's job, particularly critical now, is to ensure that the country fulfills its Constitutional principles and to uphold the rule of law, which was so dramatically turned on its head under Bush. It might have been wishful thinking to expect that Holder would repudiate the framework of the "war on terror" -- particularly given Obama's own devotion to it. But by continuing to use it as the guiding narrative for American justice, he gives credance to the operative logic that led to so much abuse and lawlessness in the first place.

Torture and preventive detention

Particularly troubling is Holder's belief in the preventive detention of enemy combatants "for the duration of a conflict" -- an issue that came up repeatedly during the hearing, and which, in the context of the "war on terror," is a direct threat to habeas corpus and due process. When asked whether prisoners at Guantanamo who might not be convicted could nevertheless be kept in U.S. custody due to the belief that they still pose a threat to the United States, Holder left the possibility open. "There are possibly many other people who are not going to be able to be tried but who nevertheless are dangerous to this country," Holder said. "We're going to have to try to figure out what we do with them."

"This is a war that may go on for an extended period of time," he said later in the hearing, suggesting that preventative detention, with certain "safeguards" in place -- such as a yearly review of suspects' cases -- could be appopriate way to deal with terror suspects. He agreed with South Carolina Senator Lindsay Graham, who, just back from Iraq, drew stark differences between enemies on the battlefield and the "unconventional enemies" we face in the so-called "war on terror." "There is a difference between a warrior and a criminal," Sen. Graham said, "and if you want to know that difference, go look at the transcript of (the trial of) Khalid Sheikh Mohammed." Khalid Sheikh Mohammed, of course, the "9-11 matermind," was one of the handful of people the Bush administration admits to having subjected to "enhanced interrogation techniques;" last Feburary, CIA Director Michael Hayden told the Senate Intelligence Committee that he had been waterboarded. (Sen. Graham was so pleased with Holder's responses to his questions, he told the nominee, "“I’m almost ready to vote for you right now.")

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."


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