Holder assures GOP on prosecution

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EXCLUSIVE:

Eric H. Holder Jr.’s confirmation as attorney general is speeding toward approval thanks in part to his private assurances to a key Republican senator that he does not intend to prosecute intelligence agency interrogators for their actions during the prior administration.

The assurances, reported by Sen. Christopher S. Bond, Missouri Republican, to The Washington Times on Wednesday, went beyond Mr. Holder’s earlier public testimony in which he said he could not prejudge his actions regarding cases he had not seen.

“I believe [Mr. Holder] will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9/11,” Mr. Bond said in the interview.

However, an aide to Mr. Holder who requested anonymity because the nominee has not been confirmed, disputed this version of events. “Eric Holder has not made any commitments about who would or would not be prosecuted,” the aide said. “He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions.”

Still, Mr. Holder’s private comments to Mr. Bond were important to moving his nomination forward. Mr. Bond was strongly considering blocking Mr. Holder’s confirmation based on questions arising from some of Mr. Holder’s public statements, a senior aide to Mr. Bond said.

But after meeting with Mr. Holder twice over the past week and having received assurances that he was not intent on pursuing intelligence officials who acted in good faith with proper authorization in the conduct of interrogations, Mr. Bond decided to support the nominee, the aide added.

On Wednesday, the Senate Judiciary Committee voted 17-2 to favorably recommend Mr. Holder, 58, for the post. The full Senate is expected to confirm Mr. Holder soon as the nation’s first black attorney general.

The full Senate continued to fill out President Obama’s national security team Wednesday, confirming by voice vote retired Adm. Dennis Blair to be director of national intelligence.

Mr. Blair last Thursday hinted strongly that he would forgo dealing with intelligence community interrogators through the courts.

During his confirmation hearings Mr. Blair said he did not intend to reopen those cases of those officers who acted within their duties, in response to a question about water-boarding from Sen. Carl Levin, Michigan Democrat. The Bush administration said the practice, widely denounced as torture, was used on three individuals, including 9-11 mastermind Khalid Sheikh Mohammed.

Mr. Blair said, I’m hesitating to set a standard here which will put in jeopardy some of the dedicated intelligence officers who checked to see that what they were doing was legal and then did what they were told to do.

Also Wednesday, the ACLU announced that it would seek the declassification of some 41 memos from the Bush administrations Office of Legal Counsel dealing with surveillance and interrogation policies. These documents have been sought by some Democrats in Congress.

ACLU legislative director, Caroline Fredrickson, said the disclosure of the memos could force the Justice Department to begin investigations into some Bush-era policymakers.

As a result of this flurry of activity, the exact content of the conversation between Mr. Bond and Mr. Holder is important to partisans on both sides of the aisle.

Sen. Russ Feingold, a Wisconsin Democrat who favors prosecution of former Bush officials for practicing what President Bush called “enhanced interrogation” and which critics deemed torture, said Wednesday that Mr. Holder “signaled a new direction” for the Justice Department with two statements he made during his confirmation hearing: “Waterboarding is torture” and “No one is above the law.”

“With these simple words, Eric Holder reassured the nation that the Department of Justice will be run by someone who believes in the rule of law and in impartial justice,” Mr. Feingold said. “It is sad, of course, that this is something remarkable. But that is where the last eight years have left us.”

But Mr. Bond read something else in Mr. Holder’s private words to him.

“I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need,” Mr. Bond said he told Mr. Holder.

“I was concerned about previous statements he made and others had made,” Mr. Bond said. “He gave me assurances that he would not take those steps that would cause major disruptions in our intelligence system or cause political warfare. We don’t need that kind of political warfare. He gave me assurances he is looking forward.”

Mr. Holder gave similar assurances 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.”

Mr. Bond told The Times that Mr. Holder also pledged in a private meeting Tuesday not to reopen the issue of immunity from civil lawsuits for telecommunications companies that cooperated with the National Security Agency after the Sept. 11 attacks - another potential obstacle to the nomination among Republican senators.

Ms. Fredrickson contacted Democratic senators after news of Mr. Bond’s conversation and was told that Mr. Holder “had not committed to withholding or pursuing prosecutions of any particular case involving torture allegations.”

She added, “It’s vital to the rule of law that we have the facts before decisions regarding prosecutions occur. We’re pleased that Mr. Holder, as a nominee to be the nation’s top law enforcement agent, appears to agree.”

Mr. Holder testified for nearly eight hours last week, but Republicans said afterward that they were still unsure about whether he would seek to prosecute soldiers and intelligence officials who practiced or ordered harsh interrogation techniques.

Mr. Holder received an important boost Tuesday when Sen. Arlen Specter, Pennsylvania Republican and ranking member of the Judiciary Committee, announced he would support the nomination.

Mr. Specter called “satisfactory” Mr. Holder’s statements that interrogation techniques authorized by legal opinions would provide a strong cover from prosecutions. Mr. Specter said Mr. Holder could not make any more explicit statements without knowing the facts of specific cases.

Mr. Holder is all but certain to be confirmed by the Democrat-controlled Senate. A vote on his nomination has not been scheduled, though a spokesman for Senate Majority Leader Harry Reid, Nevada Democrat, said the chamber could vote as early as Thursday.

About the Author
Ben Conery

Ben Conery

Ben Conery is a member of the investigative team covering the Supreme Court and legal affairs. Prior to coming to The Washington Times in 2008, Mr. Conery covered criminal justice and legal affairs for daily newspapers in Connecticut and Massachusetts. He was a 2006 recipient of the New England Newspaper Association’s Publick Occurrences Award for a series of articles about ...

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