Eric Holder Jr.'s confirmation hearing began with the question that nearly scuttled the nomination of Michael Mukasey: "Do you agree with me that waterboarding is torture and illegal?" asked Senate Judiciary Committee Chairman Patrick Leahy, D-Vt.
Unlike Mukasey's answer, Holder's was unambiguous. "I agree with you, chairman, that waterboarding is torture."
While Holder broke sharply with the Bush administration on several issues related to the detention and interrogation of suspected terrorists, the attorney general nominee embraced many, if not most, of the national security tools created in the last eight years.
Over more than seven hours of testimony last week, Holder aligned himself with the Bush administration on key areas of national security policy, including the USA Patriot Act, revisions to the Foreign Intelligence Surveillance Act, and a new set of Justice Department guidelines that enhance the FBI's powers to open criminal and national security investigations. Holder also said he wouldn't meddle with the Bush administration's legal opinions from the Office of Legal Counsel without a clear reason.
Statements before Congress aren't always the best signal of what a Cabinet official will do once in office -- Holder, who left government before the Sept. 11, 2001, terrorist attacks, needed to persuade Republicans that he would be strong on national security. "We are at war," Holder told the committee. "When I look back at the '90s and the embassy bombings, the bombing of the Cole, I think we as a nation should have realized that, at that point, we were at war," he said. The 2000 suicide bombing of the USS Cole off the coast of Yemen killed 17 sailors.
"We should not have waited until September the 11th of 2001 to make that determination," said Holder, a former federal prosecutor, D.C. Superior Court judge, and deputy attorney general in the Clinton administration.
Sen. Lindsey Graham, R-S.C., a former military judge, replied, "I'm almost ready to vote for you right now." The Senate Judiciary Committee is scheduled to vote on Holder's nomination on Wednesday, to be followed soon after by a vote in the full Senate. Legislative aides and lawyers involved in the nomination expect Holder to win confirmation easily.
'EVERY AVAILABLE TACTIC'
In response to questions Jan. 15, the Covington & Burling partner renounced waterboarding as torture, said the incoming administration's interrogation policies would comport with treaty obligations, and reiterated Barack Obama's pledge to shutter the detention facility at Guantanamo Bay. But Holder used firm language to describe the state of national security and indicated that he would continue down the path paved by Congress and the Bush administration, with FISA and the Patriot Act.
"I will use every available tactic to defeat our adversaries, and I will do so within the letter and spirit of the Constitution," Holder said.
When asked whether he would reauthorize a provision of FISA that allows the government to track so-called "lone wolf" terrorists, or those without any discernible affiliation, Holder said, "I expect that I will."
That provision sunsets this year along with two others. The first of those allows for roving wiretaps, a tool that allows the government to monitor any phone line or Internet account that a terrorism suspect may be using, whether or not others who are not suspects also regularly use it. The second permits investigators to examine business records -- including records of books checked out at a library -- without a warrant.
Both are highly controversial, as Holder noted, but he said he would likely support them. "The tools that we have been given by Congress in FISA are important ones, so I would look at all three and make the determination of whether I would be able to support them," Holder said. "I expect that I will."
Holder also expressed support for a new set of guidelines for FBI agents to follow in criminal and national security investigations. The guidelines provide uniform rules for assessing threats in both types of investigations. They provide guidance on how and when agents can conduct surveillance, use informants and consider race or ethnicity in determining whether someone is a suspect. The American Civil Liberties Union and several others have said the guidelines invite racial profiling.
Sen. Russ Feingold, D-Wis., asked Holder whether he would "take a close look at these guidelines early in your tenure and consider whether changes need to be made."
Holder said he would, though he said he wants to try them in the field first.
"The guidelines are necessary because the FBI is changing its mission, going from a pure investigative agency to one that deals with national security matters," Holder said.
Sources who were involved in the transition say Obama has settled on David Kris to lead the department's National Security Division. As an associate deputy attorney general from 2000 to 2003, Kris supervised the government's implementation of FISA and represented the Justice Department at the National Security Council. A critic of the Bush administration's key legal justifications for the National Security Agency's domestic spying program, Kris distributed a 23-page legal analysis to reporters in 2006 concluding that the warrantless wiretapping program violated the 1978 Foreign Intelligence Surveillance Act.
William Moschella, a former principal associate deputy attorney general in the Bush administration, says Kris is unlikely to deviate much from the division's current operations.
"I expect Mr. Kris would advocate for robust national security enforcement and policies -- as he did for the intelligence tools in the Patriot Act," says Moschella, of counsel in Brownstein Hyatt Farber Schreck's Washington office.
Amy Jeffress, who has been National Security Section chief in the U.S. Attorney's Office since 2007, has accepted an offer to join Holder's staff as his national security adviser if he's confirmed, according to two sources involved in the transition.
If confirmed, Holder and his staff will have to make a decision whether to order a criminal investigation of Bush administration officials who condoned the use of waterboarding on suspected terrorists. Holder declined to do so at the 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 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.