‘We are profoundly aware of the challenges that the [Justice] Department and the country are facing,” especially “the constant threat posed by Al Qaeda and Islamic extremists.”
So wrote a group of “former federal prosecutors and senior officials of the Department of Justice,” as they accurately described themselves in a letter to the Senate Judiciary Committee last week. The authors include several friends and cordial acquaintances of mine. They are all Republicans. They are also now top-tier, Washington-based private lawyers, litigating regularly against the same government they once served. Maintaining the respect and admiration of their former department, no matter which party is in power, is obviously imperative.
There’s no question, though, that these former Justice Department lawyers are, as they say, “profoundly aware” of the terrorist threat. For that precise reason, they’ve consistently and zealously supported the defensive measures taken by the Bush administration after nearly 3,000 Americans were slaughtered on 9/11.
Because this is so, I must say — being a former federal prosecutor myself — that I was profoundly surprised to learn why these former federal prosecutors have banded together to expound on their profound awareness: It is to urge the Senate confirmation of Eric Holder, President-elect Barack Obama’s nominee to become the next Attorney General of the United States.
In the telling of these DOJ alums, “Eric,” their friend and fellow Washington practitioner, cannot “swiftly” enough take his place “as a key component of the President’s National Security Team.” Why should this so astonish me? Well, you see, these former Justice Department officials have bristled for years at point after scurrilous point of the Left’s indictment against the Bush administration — an indictment with which Eric Holder enthusiastically agrees.
The former DOJ officials were repulsed, for example, when the president was smeared as the Marquis de Sade behind a torture regime. This was “enhanced interrogation,” they replied, not “torture.” It yielded intelligence that saved American lives while helping us decimate al Qaeda.
They meticulously refuted critics of the president’s decision to authorize warrantless surveillance of suspected terrorist communications into and out of the United States. Clearly appropriate and urgently necessary, they argued: an initiative that found rich support in the Constitution, court decisions, and the practice of both Democrat and Republican administrations past.
What about the detention without trial of Yasser Hamdi and Jose Padilla — two American citizens who were branded “unlawful enemy combatants”? Bush bashers blasted the confinement of these men in a military brig, deprived of counsel and stripped of the due-process rights accorded foreign jihadists throughout the 1990s. But no, these redoubtable former prosecutors countered: Military detention without trial, even for American citizens, is a straightforward application of the laws of war, fully justified by Supreme Court precedent from the Second World War.
And then there’s Guantánamo Bay — in the Left’s view, a living, breathing affront to the Geneva Conventions. Critics call it a “legal black hole” where Bush has lawlessly “suspended habeas corpus,” that most basic right to have a neutral judge assess the legality of imprisonment. Preposterous, replied the former prosecutors. Again and again they elaborated: Gitmo is a model facility, the hundreds of aliens held there have no constitutional rights, the place is outside the U.S. and thus outside the habeas jurisdiction of American judges, and, besides, these savages target civilians — they are terrorists with no legitimate claim on the privileges that Geneva accords to honorable prisoners of war.
Finally, these former prosecutors have expressed outrage at the suggestion that the Justice Department, their beloved Justice Department, might be used by victorious Democrats to investigate political adversaries.
Tirelessly, the shock troops have repeated it; chillingly, Obama spokesmen echoed it throughout the campaign: the Left wants, the Left demands, what it calls a “reckoning” — war crimes investigations against both the Bush officials who authorized post-9/11 counterterrorism policies and the intelligence, military, and Justice Department operatives who implemented them. Absolutely not, the former prosecutors retorted. That’s banana republic stuff. It’s the kind of thing we don’t do in America. The kind of thing sure to dissolve both national cohesion and the intelligence community’s incentive to do its vital job. The kind of thing no one who cares about the Justice Department’s storied traditions would even contemplate.
I’ve heard the whole defense, again and again, from these friends and allies of mine. Heard it and agreed with it. What’s most impressed me is the passion with which it has always been expressed, the conviction that Bush’s defensive measures — taken to safeguard a nation still under siege — were both constitutional and absolutely essential to fulfilling government’s first duty, the protection of American lives.
Yet, these same former prosecutors now assert that Eric Holder “understands and appreciates” the threat to our country just as they do. In fact, they’re not content to leave it at that. They finish their letter with a flourish: “Eric Holder is the right man at the right time to protect our citizens in the critical years ahead.”
EXAMINE THE HISTORICAL RECORD
Reading their letter, after everything these former officials have so eloquently said about our national-security needs, I found myself wondering whether, unbeknownst to me, they’d somehow managed to convert Holder. And please understand: in this case, a conversion would most certainly be required. To put it mildly, anti-terrorist ferocity was not the hallmark of Holder’s tenure as Deputy Attorney General — pace the cheery portrait sketched by the former prosecutors, whose letter assures us that “everyone seems to agree with us that Eric is extraordinarily well qualified to be Attorney General,” and that “virtually no one disputes that Eric was an outstanding Deputy Attorney General in every respect.” (I’ve never before thought of myself as “virtual,” but there you have it.)
Some history is in order. The Clinton administration’s impressive 1996 overhaul of counterterrorism law happened before Holder ever got to Main Justice. He was there, though, in time to engineer the shocking, politically driven pardons of 16 Puerto Rican separatists — terrorists whose organizations (most notoriously, the FALN) were responsible for over 130 bombings and the murders of innocent Americans; terrorists who hadn’t even applied for clemency or expressed a modicum of remorse (elementary prerequisites for pardon consideration under Justice Department standards); terrorists as to whom Holder’s response was to stonewall Congress when the inevitable questions arose; terrorists whose pardons Holder supported over strenuous protest from victims’ families and law enforcement (including subordinates he brow-beat into muting their objections); terrorists whose pardons Holder urged despite the horrible message this sent in the aftermath of al Qaeda’s bombings of our embassies in Kenya and Tanzania.
Moreover, Holder had been acting as Attorney General throughout the final months of the Clinton administration when al Qaeda killed 17 members of the U.S. Navy by bombing the U.S.S. Cole. In response to that al-Qaeda atrocity, the Clinton Justice Department filed no charges . . . even as the department was taking no action against Iranian government operatives who, Justice well knew, had carried out the Khobar Towers bombing in Saudi Arabia, in which 19 members of the United States Air Force were murdered. Charges were finally filed in these cases by the Bush Justice Department.
Holder did, however, contribute to one other terrorist matter: the pardons of Weather Underground terrorists Susan Rosenberg and Linda Sue Evans. (Rosenberg, as I’ve recounted, was my case.) There’s no piece of paper — at least none we’ve seen publicly — that says Holder recommended these pardons. Just as there isn’t one that says he opposed them. Maybe, if there finally is a long-overdue congressional inquiry, we won’t find a paper-trail either way. Holder is a classic go-along-to-get-along careerist: Clinton wanted to pardon these terrorists, and Holder’s modus operandi under such circumstances was to leave behind as few of his fingerprints as possible in the course of not making waves.
But we do know that Holder helped create the climate that made the Weather Underground pardons possible. With the FALN pardons, he helped foster an atmosphere where terrorist clemency was not out of the question — even though the United States was then being targeted for terrorist attacks. And, of course, in the Marc Rich case, while doing the bidding of Jack Quinn (a top Washington lawyer and Al Gore confidant well positioned to promote Holder as Attorney General in a potential Gore administration) Holder helped devise an appalling pardon process that intentionally, methodically bypassed the Justice Department protocols he was responsible for upholding. Rich is only the most infamous beneficiary — the off-line process was the gateway to freedom for Rosenberg, Evans, and the several other pardons that disgusted the Justice Department and the nation.
HOLDER’S TERRORIST “RECKONING”
Evidently, that’s all water under the bridge. Besides, maybe I’d missed something. Maybe, after all that’s happened to our country since his last tour of duty, Eric Holder had learned his lesson. Maybe my friends, these former prosecutors, had gotten in Holder’s ear. Their letter says he “understands and appreciates” the terrorist threat just like they do. Maybe, at last, he’s started saying the sorts of things they’ve been saying all along.
Um . . . not exactly.
Here’s Holder, as a top Obama adviser, in a speech delivered only six months ago, in the comfy “progressive” confines of the American Constitution Society’s annual convention:
Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution.
Holder inveighed that the tactics employed by the Bush administration — the very ones my friends have championed in explaining why we haven’t suffered another 9/11 — were “needlessly abusive and unlawful practices.” The measures these former prosecutors had rallied behind were, according to their friend Eric, a demonstration that we had “lost our way with regard to [our] commitment to the Constitution and to the rule of law.”
As far as Holder was concerned, Bush’s initiatives had not only “diminished our standing in the world community” but “made us less, rather than more, safe.” An Obama administration, he promised, would dramatically change all that. And Holder ominously proclaimed to the roar of the anti-Bush crowd, “We owe the American people a reckoning.”
HE’S “THE RIGHT MAN” . . . JUST ASK MICHAEL RATNER
I have to congratulate my friends who’ve somehow convinced themselves that “Eric Holder is the right man at the right time to protect our citizens in the critical years ahead.” They’ve proved what I wouldn’t have thought possible: that Barack Obama is exactly the unifying figure he claimed to be. After all, by choosing Holder, he’s managed to put a Who’s Who list of former top Republican Justice Department officials on the same page with Michael Ratner.
Ratner is the head of the Center for Constitutional Rights, a Marxist, rabidly anti-American organization. When it is not representing al Qaeda and suing the government in U.S. courts, CCR is busy overseas, trying to persuade Germany, Spain, or some willing international tribunal to prosecute key Bush administration officials (including some in the Justice Department) for purported war crimes.
Ratner is thrilled with Obama’s Attorney General selection. And why not? He provides the rationale on his blog (which is called “Just Left — News and Analysis from the frontlines of the progressive movement,” with new entries posted just under a cute mock-up of hooded “torture” victims trooping past the Capitol). When Ratner looks at Holder, he doesn’t see an ideal “Eric” newly dedicated to protecting this nation from jihadists; he sees the Holder we’ve actually experienced. When he listens to Holder, he hears not what he wants to hear, but the things Holder actually says about the Bush administration’s response to terrorism. From this, he deduces that Holder’s elevation means “the day of reckoning is fast upon us.” And keep reading his blog for the diatribe that follows about Bush torture, Bush spying, and Bush illegal detentions. It sounds positively Holderesque.
Not to worry, though. I’m sure Eric will be a superb AG. At least we better hope he’ll be. With the wind of influential Republican support at his back, his confirmation seems assured.
All then will be well in Washington’s collegial legal community. For the rest of the country . . . not so much. Holder will push through Obama’s shuttering of Guantánamo Bay, which Holder calls “an international embarrassment.” He’ll determine which terrorist detainees there “need to be released,” as he put it in his June speech (I suppose that will spare Obama the headache of pardoning them later). And, pressured by hard lefties like the ones he enthralled at the American Constitution Society, Holder’s Justice Department will press ahead with its “war crimes” and “domestic spying” investigations. Even if it’s just a cynical show and no one is ever actually prosecuted, our intelligence agents will get the unmistakable message: Doing your job, protecting the country, means you better be ready to hire a good Washington lawyer.
Of course, we’ll complain. And after we do, once they’ve caught their breath from laughing, Obama acolytes will deadpan: “What are you complaining about? Eric is only doing exactly what he said he’d do back when you guys were calling him ‘the right man at the right time to protect our citizens in the crucial years ahead.’”
And they’ll be right.
– National Review’s Andrew C. McCarthy is the author of Willful Blindness: A Memoir of the Jihad (Encounter Books 2008).