The Corner

Can the AG Keep His Story Straight?

It’s hard to when you’re making it up as you go along.

In yesterday’s exchange with Senator Kyl, while giving the back of the hand to my claim that leftist lawyers had derailed the Military Commissions Act of 2006, Attorney General Eric “Real American Values” Holder argued that it was the Supreme Court — “not, I think, a group of leftist lawyers” — who had “had concerns” about the way the military commissions “were constructed.” Of course, it wasn’t the full Supreme Court that had “concerns” in the 2006 Hamdan case — it was Justices Stevens, Souter, Ginsberg and Breyer (i.e., the Court’s leftist bloc), joined by Justice Kennedy (who tends to vault left when the issue is whether the judiciary can impose new restraints on executive power). Hamdan was represented by Neal Katyal, now the Deputy Solicitor General in the Obama Justice Department. Katyal, who is a very able lawyer, began his legal career clerking for Justice Breyer, after a stint clerking on the Second Circuit for Judge Guido Calabresi, one of the most left-wing jurists in the U.S. And here’s a rundown of the numerous legal briefs filed in the case. You can judge for yourself whether I accurately described the major opposition to the MCA as leftist lawyers.

But here’s the thing. Yesterday, the AG went on to say that after Hamdan was decided in June 2006, “The Congress reenacted — and, I think, appropriately so — the way in which the commissions were constructed.” (Emphasis added.) But he didn’t “think” it was “appropriately so” at the time. As I’ve argued, the ink was not yet dry on the MCA when the detainees (several of whom have been represented by Holder’s old firm and by other Obama DOJ lawyers) marched en masse into federal court to challenge the MCA as unconstitutional. And in June 2008, speaking as an Obama campaign adviser at the left-leaning American Constitution Society, Holder inveighed that the Bush administration had “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.”

Now that he’s actually had his Department endorse many of the policies he then condemned, I wonder if the Attorney General would agree that his June ‘08 speech was a tad polemical?