It’s been a rough few months for Attorney General Eric H. Holder Jr., and he should face more tough questioning when he reports for the Senate Judiciary Committee oversight hearing on Tuesday.
In the legal war on terror alone, he has been under fire for scheduling the trial of Khalid Shaikh Mohammed in civil court in New York rather than in a military tribunal; for Mirandizing the Christmas Day bomber suspect; for trying to relocate Guantanamo detainees where people don’t want them; for dragging his feet before finally revealing at least nine lawyers in his department who formerly represented terrorist detainees; and, most recently, for reporting that he failed to disclose in his confirmation hearings seven briefs in which he participated as a lawyer, including ones involving the war on terror.
Even with health care and the economy as the front-burner issues in Mr. Obama’s first year, no Cabinet officer’s department has generated more smoke than Mr. Holder’s. Senators - even the president himself - should be examining these several problems and asking whether Mr. Holder is really up to the job or, perhaps worse, whether these issues add up to an agenda to tip the legal scale sharply in favor of detainee rights and away from national security concerns.
Let’s start with the latest flaps because, taken together, they seem to raise questions of legal philosophy at the Department of Justice. In November, Sen. Charles E. Grassley, Iowa Republican, asked Mr. Holder to identify department lawyers who may have conflicts of interest for having represented detainees. In a surprisingly cool response, Mr. Holder said he’d consider it and then sat on it for three months. Finally, last month, he provided an incomplete answer, admitting there were at least nine department lawyers who had represented detainees, identifying just two of them.
Then the department acknowledged this week that Mr. Holder had failed to disclose some of his own work on several briefs, including one on behalf of enemy combatant Jose Padilla, during his confirmation hearings as attorney general, calling it an oversight. A case that went all the way to the Supreme Court would seem to be difficult to forget or overlook.
It does seem to be a fair concern why Mr. Holder, who works for a president promising the most transparent administration in history, would stonewall the Senate and even now fail to provide a complete response on who in his department represented detainees and their current responsibilities. Those who questioned his response, however, prompted quite a sideshow as several prominent lawyers came forward to defend the obligation of an attorney to represent unpopular causes. This neatly sidesteps the real question, which is not whether these lawyers acted properly before they came to Justice, but rather, why Mr. Holder chose to hire so many of them and what they are doing now. Believe me, had the Securities and Exchange Commission hired a suite of Fortune 100 general counsels to enforce securities laws or the Environmental Protection Agency a table full of lawyers from oil companies, such questions would be asked.
Other hard questions Mr. Holder should have to answer include why he feels a lawyer with no prosecutorial experience - who as a human rights advocate referred to military commissions as “kangaroo courts” and said freeing terrorists is a legal “assumption of risk” we must be prepared to take - is qualified to represent the department on detainee matters. Or, for that matter, what Mr. Holder’s hiring of these nine lawyers or his signing of Padilla’s brief might tell us about his own view of detainee rights. After all, because some of those briefs were not produced for his confirmation, that was a conversation the senators did not have with him when it counted.
There are two schools of thought about the legal war on terror. One essentially starts from the premise that terrorist suspects, enemy combatants and detainees should not be tried as “criminals” and are not entitled to the full panoply of constitutional rights afforded to U.S. citizens. Instead, they should be tried in military tribunals, with more limited rights. A very different view, held by many human rights advocates, is that terrorist suspects should be treated as one of our own citizens, even at the risk of returning enemy combatants to the field to attack again.
The U.S. Senate, and the American people, have every right to know who is setting policy for the legal war on terror and in which of these directions they are headed. Mr. Holder would do well to bring less foot-dragging and more forthright answers to these legitimate questions when he comes before the Judiciary Committee next week.
David Davenport is a research fellow at the Hoover Institution.