The Corner

Is There a Deal Behind the Holder Confirmation Express?

At the Washington Times, the excellent Eli Lake says yes–Holder has reportedly assured Sen. Kit Bond that he will not launch prosecutions against intelligence officers and political officials who authorized enhanced interrogation techniques:

Sen. Christopher “Kit” Bond, Missouri Republican and vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for attorney general because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program….  Mr. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits — removing another potential sticking point among GOP senators.

The report adds that Holder’s assurance to Sen. Bond echoes one he gave in writing last week to Sen. Kyl and Sen. Cornyn:

Mr. Holder made a similar point to senators last week in a little-noticed written response to questions from Republican Sens. Jon Kyl of Arizona and John Cornyn of Texas. Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.  “Prosecutorial and investigative judgments must depend on the facts and no one is above the law,” Mr. Holder wrote. “But where it is clear that a government agent has acted in ‘reasonable and good faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full blown criminal investigation, let alone a prosecution.”

This is good to hear, though I would note four things. First, it does not accord with Holder’s hearing testimony, in which he hedged on the question of prosecutions, leaving room to pursue them. Second, it’s still a hedge–”I would find it difficult to justify” is not the same as “I will not” (and note that Sen. Cornyn voted against Holder anyway). 

Third, Holder increased the pressure he will face to take action against Bush officials not only by promising a “reckoning” in public statements but also, in his testimony, by gratuitously opining that waterboarding is torture, something AG Mukasey refused to do–even though it turned what should have been an easy confirmation into a horse-race–precisely because he refused to imperil with reckless remarks American officials who had taken action in defense of this country. As I noted earlier, a UN official is now demanding prosecution of President Bush and Defense Secretary Rumsfeld on the theory that the U.S. solemnly pledged to prosecute all torturers in its jurisdiction when it ratified the UN Convention Against Torture (and a quick perusal of Articles 6 and 7 of that treaty indicates that this is not a flimsy theory). By declaring waterboarding to be torture, Holder has not only set himself (and us) up for this claim, he has increased the likelihood that foreign governments will try to prosecute Bush, Rumsfeld and others under the treaty. Nice job–good to see his judgment has really improved since those pardons.

And fourth, whatever far-from-airtight commitment he has given to Republican senators, who are apparently content to vote for him despite a sordid record, that commitment is not enforceable. Already, as Eli further reports, the Left is stirring: 

The legislative director for the American Civil Liberties Union, Caroline Fredrickson, said Wednesday that she was alarmed by Mr. Bond’s statements and was hoping that “Kit Bond is not stating this in the way that Mr. Holder stated it to him.” She added: “We are hoping there will be a clarification. It would be extraordinary if our top prosecutor, before taking office, would have predetermined whether or not to pursue certain cases because of political pressure.”

These people are not going away–and they will be putting heat on liberal Democrats.  Holder promised them a “reckoning” and they took him at his word–words which, by the way, were a lot clearer than the carefully hedged words with which he has managed to mollify Republican senators.

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