Whatever happens to the Khalid Sheikh Mohammed trial or the Guantanamo prison camp, Attorney General Eric Holder is clearly a big loser on both issues inside the Beltway. Holder is being beaten up for his actions on the related fronts not only by Republicans and conservative but also by no less a figure than White House chief of staff Rahm Emanuel.
Emanuel has done nothing to contradict or even soften the widespread reports that he opposed Holder’s decision in November to try KSM and four other alleged co-conspirators in a federal court in New York City instead of in a military tribunal in Guantanamo. Similarly, Emanuel reportedly opposed from the outset President Obama’s pledge to close the Guantanamo prison camp a thankless job that Obama assigned to Holder.
At this writing, the decision on the KSM trial is still pending, but Holder has already been forced into a partial retreat. He told The Washington Post in February that the selection of a forum was less important than making sure that the trial was conducted “as transparently as possible and with adherence to all the rules.”
As for Guantanamo, out of the 250-plus prisoners at Guantanamo on the day of Obama’s inauguration, 188 are still there. On Capitol Hill, opposition from Republicans and ambivalence at best from Democrats threatens to block any funding for moving prisoners to a facility on the U.S. mainland.
The KSM trial issue combined with the Justice Department’s decision to treat the Christmas Day bomber, Umar Farouk Abdulmutallab, as a criminal suspect to bring forth a torrent of criticism for Holder. Sen. Lamar Alexander, a moderate Republican from Tennessee, cited both issues in a Jan. 31 appearance on Fox News Sunday, where he said that Holder “perhaps” should resign.
Despite all that flak, Holder appears secure in his job. Indeed, Alexander declined to repeat his call for Holder to resign when invited to write an op-ed for my forthcoming CQ Researcher report, “Prosecuting Terrorists” (March 12). Other GOP congressional offices also passed. Still, Holder’s influence his ability to call the shots on the administration’s legal policies certainly appears weakened.
Liberal supporters nevertheless give Holder high marks for redirecting the Justice Department in the aftermath of what they see as the disastrous eight years for the department under President George W. Bush. “The first thing that comes to mind is Hercules cleaning the Augean stables,” says Caroline Frederickson, executive director of the American Constitution Society (ACS). “It was a massive undertaking to remedy the problems of the Bush administration.”
From a liberal perspective, Holder, the first African American to serve as attorney general, gets credit in particular for redirecting the department’s civil rights division, which was overtly politicized under Bush. Frederickson notes that ACS was one of the organizations whose members were blacklisted for Justice Department hiring under Bush. She is confident that hiring is now done professionally, with no comparable blacklist for the Federalist Society, the conservative group that played an influential role in legal issues under Bush.
Holder has identified himself with liberal stances on other issues. In March, he issued revised Freedom of Information Act guidelines directing agencies to be more favorable toward requests for documents under the landmark federal law. In October he sounded social services-type themes in teaming with Education Secretary Arne Duncan on an initiative to reduce youth violence.
As administrator, Holder’s record is mixed. Deputy attorney general David Ogden resigned after less than a year; the two did not work well together. The all-important Office of Legal Counsel has only an acting director; Senate Republicans are blocking a confirmation vote for Dawn Johnsen, a liberal law professor. The pace of judicial nominations is slow.
Holder’s administrative abilities were put to the test in taking over the Guantanamo files from the Bush Defense Department. Justice Department lawyers reportedly found case files on the prisoners to be incomplete, disorganized or worse. It is no wonder that federal judges in Washington have ruled in favor of most of the detainees’ habeas corpus challenges to come to decision so far. Meanwhile, the Justice Department has the uphill job of trying to find countries to agree to take some of the detainees off our hands. Progress on that front comes one, two or three prisoners at a time.
Along with Guantanamo, Holder bought himself trouble in August by opening the door to possible prosecution of CIA agents for interrogation of some terrorism suspects during the Bush years. Holder said the department would examine whether some agents went beyond the controversial “enhanced interrogation techniques” authorized by the Bush Justice Department. Conservative critics see nothing other than prosecuting CIA agents for doing their jobs and keeping the country safe.
Some of Obama’s advisers are reportedly distressed with Holder’s stances. “The White House doesn’t trust his judgment,” an unnamed lawyer “close to the administration” told New Yorker staff writer Jane Mayer. To Frederickson, however, Holder’s job is to be “lawyer for the nation,” not just the president. “People respect him for his efforts,” she says.
Holder himself says he is comfortable with his role and his relationship with Obama. “We are on the same page,” he told Mayer. ““He recognizes that being attorney general at this time is not the easiest job in the world.”