Eric Holder
A day after Republicans on Capitol Hill said they were “deeply concerned” over news that, during his confirmation process, Attorney General Eric Holder failed to disclose work on a terrorism-related legal brief, the Justice Department revealed Friday that the problem was wider than previously known.
“It has come to our attention that some but not all briefs submitted to the Supreme Court by or on behalf of Attorney General Holder … [were supplied] in the course of his confirmation process last year,” Assistant Attorney General Ron Weich said in a letter to the Senate Judiciary Committee, which vets judicial nominees. “We regret the omission.”
The letter was accompanied by six more recently-identified briefs, only one of which was filed in a terrorism-related case.
Some Republicans were blunt in their criticism Thursday after revelations that a single terrorism-related brief had been omitted from Holder’s response to a Senate Judiciary Committee questionnaire last year.
“Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country’s most publicized terrorism cases?” asked Sen. Jon Kyl, R-Ariz. “To me that strains credulity.”
A Justice Department spokeswoman said the seven briefs were “inadvertently not supplied to the committee.”
On Wednesday, as reports of the first-known omission began to emerge, a Justice Department spokesman offered more details.
“In preparing thousands of pages for submission, it was unfortunately and inadvertently missed,” Matt Miller said in a statement. “In any event, the attorney general has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearing.”
In fact, Holder discussed the issue at length during his confirmation hearings in January 2009, promising to fight terrorism “within the letter and the spirit of the Constitution.”
“Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools,” he said. “America must remain a beacon to the world. We will lead by strength. We will lead by wisdom. And we will lead by example.”
In addition, during those hearings, Holder and Sen. Lindsey Graham, R-S.C., discussed future decisions over the “form to try people and how to interrogate them,” as Graham put it.
Still, the two terrorism-related “amicus briefs” filed with the Supreme Court in 2004 and 2005 resonate years later as Holder finds himself defending the handling of some recent terrorism cases, particularly the interrogation of alleged “Christmas Day bomber” Umar F. Abdulmutallab.
The briefs — signed by Holder, former Attorney General Janet Reno and other Clinton-era officials — argued that the president lacked authority to hold Jose Padilla, a U.S citizen declared an “enemy combatant,” indefinitely without charge.
In making their case, Holder and the others insisted that using federal courts to fight terrorism, which includes providing Miranda rights to terror suspects, would not “impair” the government’s ability to obtain intelligence, which they called “the primary tool for preventing terrorist attacks.”
“Many terrorists who have been arrested and provided counsel have decided to cooperate and provide valuable information to the government,” the 2004 brief said. “Over the last decade, the investigative, detention, and prosecutive authorities (of the federal court system) have been used in many cases not only to identify, arrest, and punish persons who have committed terrorist acts, but to disrupt and thwart terrorism before it can occur.”
But the brief did acknowledge a possible risk in such use of the federal court system — a risk, the brief said, that is outweighed by the advantages.
“It may be true that in some cases the government will not be able to obtain information from citizens who are informed of their right to counsel, or that obtaining that information may be delayed,” the brief said, noting that a lower federal court characterized such a scenario as speculative. “But this is an inherent consequence of the limitation of executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our nation has always been prepared to accept some risk as the price of guaranteeing that the executive does not have arbitrary power to imprison citizens.”
That assertion does not reflect the same level of certainty that Holder has expressed recently about the ability of the federal court system to obtain intelligence and fight terrorism.
“I am confident that … the decision to address Mr. Abdulmutallab’s actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks,” Holder said in a Feb. 3 letter to lawmakers. “Neither advising Abdulmutallab of his Miranda rights nor granting him access to counsel prevents us from obtaining intelligence from him.”
Holder recently said Abdulmutallab has been providing “very useful” information to counterterrorism officials after being persuaded to cooperate with authorities.
After President Obama nominated Holder to be attorney general, the Senate Judiciary Committee sent Holder a 47-page questionnaire, including a request for any briefs he had filed with the Supreme Court “in connection with your practice.”
In response, Holder said he participated in a total of five such briefs, none of which dealt with terrorism-related issues. He signed a statement saying the information he provided was accurate and complete “to the best of my knowledge.”
But it turns out Holder participated in at least 12 briefs filed with the Supreme Court, two of which dealt with terrorism-related issues.
“It is simply unacceptable that briefs in such significant cases were not provided to the Committee so that they could be discussed during his confirmation hearings,” said a spokesman for Republicans on the Senate Judiciary Committee, adding that the omissions will be “a significant issue” when Holder appears before the committee on Mar. 23.
Nevertheless, Miller suggested Holder has always been open about his views on fighting terrorism.
“The attorney general has said many times publicly (that) the government has ample lawful ability to detain and interrogate terrorists and disrupt attacks without resorting to making claims of executive power that strain the Constitution,” Miller said.
In fact, in Holder’s response to the Senate Judiciary Committee questionnaire, he listed a number of speeches in which he strongly condemned the Bush administration’s tactics against terrorism and promised a new way forward.
“Unfortunately, in the last few years we have lost our way, with respect to our commitment to the Constitution and to the rule of law,” he told a left-leaning crowd at the 2008 American Constitution Society conference in Washington, D.C., an event noted in Holder’s questionnaire. “The rule of law is not, as some have seen it, an obstacle to be overcome. … As Americans, we should bring people to justice and not hide them away from justice.”
Holder’s remarks from that event became the centerpiece of a recent ad from the conservative group Keep America Safe, questioning Holder’s decision to hire lawyers who previously represented or advocated for detainees at Guantanamo Bay and elsewhere.