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Holder Sets Tone as Confirmation Hearings Begin
Legal Times
January 16, 2009
In his first day of confirmation hearings, Eric Holder Jr. pledged to step up the government's fight against terrorism, restore the credibility of a Justice Department shaken by politicization, and wage an aggressive fight against perpetrators of financial fraud and market manipulation.
The Covington & Burling partner laid out an ambitious agenda for the department, promising to place renewed emphasis on civil rights and "reinvigorate" the department's efforts to safeguard consumers through antitrust enforcement.
National security issues dominated the hearing, defying expectations that Republicans would bludgeon Holder with the past. Though several senators nipped at Holder for his role in the clemency grants of fugitive financier Marc Rich and 16 members of the Puerto Rican nationalist group FALN, much of the back-and-forth focused on torture, the USA Patriot Act, the fate of detainees at Guantanamo Bay, and detention and interrogation polices.
Judiciary Committee Chairman Patrick Leahy's first question -- whether Holder believed waterboarding is a form of torture -- seemed to set the tone. Holder did not hesitate: "I agree with you, chairman, that waterboarding is torture." He also said U.S. officials could be held accountable for transferring prisoners to the custody of foreign agents or contractors who use such interrogation methods.
The waterboarding question, which nearly sank the nomination of Attorney General Michael Mukasey, means Holder will have to make a decision, if confirmed, whether to order a criminal investigation of Bush administration officials who condoned the use of the tactic on suspected terrorists. Holder declined to do so at Thursday's hearing, when asked by Sen. Orrin Hatch, R-Utah.
"No one is above the law," Holder said, "and we will follow the evidence, the facts, the law, and let that take us where we should." But the nominee said he didn't want to "criminalize policy differences" that might exist between the incoming and outgoing administrations.
"Would you consider these policy differences?" Hatch asked.
Holder said he would have to familiarize himself with the details of the policies before making a judgment. Those policies derive, in part, from legal opinions from the Justice Department's Office of Legal Counsel. Holder said that he would not rescind OLC opinions for political reasons, extolling a "respect for the notion of stare decisis."
"It will not be a political process. It will be solely based on our interpretation of the law," Holder said. When pushed to describe the margins of detainee interrogations, Holder said the Army Field Manual was "a good place for us to start" but stopped short of endorsing it as the last word. Holder also said he would likely support the reauthorization of three PATRIOT Act provisions -- including the use of roving wiretaps -- that sunset later this year.
On the question of Guantanamo Bay, Holder reiterated President-elect Barack Obama's pledge to shutter the detention facility, but made it clear that the fate of the detainees is still very much up in the air. Any forum for trying suspected terrorists outside of the criminal justice system would have to be "substantially revamped," Holder said, referring to the military commissions in place.
Seven hours in, the hearing had yet to become the inquisition that some conservatives had agitated for. Early on, Holder tried to blunt criticism by confronting the pardon issue head-on.
"I've accepted the responsibility for making those mistakes," he said of the Rich pardon. "Given an opportunity to do it differently, I certainly would have. That was, and remains, the most intense and searing experience I've ever had."
The most heated exchanges of the day came when Sen. Arlen Specter's questioned Holder's role in the Rich pardon and accused him of hiding behind the Justice Department pardon attorneys in the FALN matter. Specter questioned Holder's candor about his own involvement.
"Given the background of this man, it's hard to brush it off -- it seems to me -- as a mistake," Specter said. "Given your experience, your background, your competency -- and the surrounding circumstance of President Clinton looking for a cover -- how do you explain it beyond simply 'a mistake'?"
Democrats did their best to cut through Republican concerns about Holder's independence. Sen. Charles Schumer, D-N.Y., asked Holder if he had been a personal lawyer to Obama (like the late William French Smith), or served as his personal counsel (like Alberto Gonzales), or if the two were related (like Robert Kennedy).
"No, we're not related by blood, though people say we look alike," Holder said.
Turning serious, Holder said he and Obama discussed the dynamic between president and attorney general. According to Holder, Obama said, "Eric, you gotta understand, our relationship is going to change as a result of this nomination."
Holder said Obama recognized that Holder would be his counselor, but not his counsel. "I understand that the Justice Department is different," Obama told him, according to Holder. "I understand that you're going to be different."
