The Problems of the White Paper
To linger on the hypocrisy is to miss the big picture.


Andrew C. McCarthy

My, how the worm has turned.

Seems like only yesterday that Eric Holder was inveighing against sweeping executive war powers. These were the Bush years, when Holder could readily be found caviling about such odious practices as “secret electronic surveillance against American citizens” and “detain[ing] American citizens without due process of law.” Back then, Holder declared these Bush war crimes so “needlessly abusive and unlawful” that the American people (translation: the Bush-deranged Left) were owed “a reckoning” against the officials who conjured them up.

But once he became attorney general in a Democratic administration, the ever-malleable Mr. Holder decided there was actually no problem killing American citizens without due process of law, based on intelligence gleaned from secret surveillance.

The breathtaking hypocrisy of the Obama Democrats is what screams off the pages of the “white paper” Holder’s Justice Department has served up to support the president’s use of lethal force against U.S. nationals who align with our foreign terrorist enemies. It bears remembering that Holder, like his Gitmo Bar soul mates, once volunteered his services to the enemy. At the time, he was a senior partner at a firm that was among the Lawyer Left’s most eager to provide free legal help to al-Qaeda enemy combatants in their lawsuits against the American people. Holder filed an amicus brief on behalf of Jose Padilla, an American citizen turned al-Qaeda operative who was sent to the United States by Khalid Sheikh Mohamed in 2002 to attempt a post-9/11 “second wave” of mass-murder attacks.

Just so you get the gist of where Holder was coming from, an amicus (or “friend of the court”) brief is not something a lawyer has to file on behalf of a client. Padilla already had other counsel. Holder was a party crasher, gratuitously intervening — exploiting his status as a former Clinton deputy attorney general — to steer the court toward his desired policy.

And that desired policy? Holder wanted terrorism relegated to the criminal-justice system, as it had been before Bush pivoted to a law-of-war paradigm. According to the pre-2009 Holder, if an enemy-combatant terrorist, particularly an American citizen, is encountered away from a traditional battlefield, the Constitution demands that he be given the rights of a criminal defendant. Executive action against him may be taken only under judicial supervision. Yes, Holder conceded, this might mean that the government will be barred from detaining and interrogating many a “dangerous terrorist.” And yes, it risks the reprise of 9/11’s slaughter of nearly 3,000 Americans. “But,” he blithely concluded, “our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.”

Ah, but arbitrary power to kill citizens — now, that’s a different story.

We could go on all day about chutzpah. Holder and Obama used to sneer that Bush/Cheney counterterrorism posed a “false choice” between our security and “our values.” Now, they’ve decided not only that the commander-in-chief’s war powers extend beyond “hot battlefields” to anyplace on the planet the president chooses, but also that the last thing we need is judicial oversight. After all, the white paper declaims, “matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention” and “turn on standards that defy judicial application.”