Eric Holder
Republicans on the Senate Judiciary Committee promised it would be a “significant issue” the next time Attorney General Eric Holder appeared before them, but when Holder finally made it there Wednesday morning no one asked him about his failure to disclose a terror-related legal brief during his confirmation.
Only Sen. Jeff Sessions, R-Ala., mentioned the issue at all.
“There can be no doubt that treating terrorists as regular criminals will reduce our ability to obtain intelligence,” Sessions said in his opening statement. “And six years ago you acknowledged that fact in a Supreme Court brief — a brief you failed to disclose as required during your confirmation process — you candidly admitted that the civilian criminal system possesses inherent limitations.”
Five weeks earlier, after the Justice Department acknowledged that several briefs should have been provided to the committee, Sen. Jon Kyl, R-Ariz., said he was “deeply disappointed” in Holder.
Kyl said Holder would be grilled at the Judiciary Committee’s next hearing with him, which at the time was scheduled for March 23 but was then postponed until Wednesday.
“Attorney General Holder will have a lot of questions to answer then about why he failed to disclose his prior representation of [Jose] Padilla to the committee, and, more importantly, why he has changed his views about the national security risks that we face because of this Administration’s handling of terrorism cases,” Kyl said in a statement issued March 12.
Appearing on Fox News Channel two weeks later, Kyl wondered whether Holder “deliberately” failed to disclose the brief.
“We’re going to be talking to him about that,” said Kyl, referring to the upcoming Judiciary Committee hearing.
Similarly, Stephen Boyd, a spokesman for Republicans on the Senate Judiciary Committee, said in a statement at the time that Holder’s omissions were “simply unacceptable,” adding that they would be “a significant issue” at the next hearing, set for March 23.
During Wednesday’s hearing, though, Holder was not asked about the issue at all. He was, however, questioned extensively about other major national security issues, particularly the use of civilian courts as a counterterrorism tool.
Each senator was allowed only seven minutes of questioning, which included Holder’s sometimes long-winded responses.
In fact, at one point, Kyl had to stop Holder from continuing to answer a question Kyl himself posed about border security.
“Could I just interrupt you,” Kyl said. “I just got seven minutes, as you know.”
The briefs that Holder failed to disclose — signed by Holder and other Clinton-era officials — argued that the president lacked authority to hold 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 would not “impair” the government’s ability to obtain intelligence, but they also acknowledged a possible risk in using the federal court system.
“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. “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.”
Republicans have said that assessment undermines Holder’s recent statements expressing confidence in the ability of federal courts to fight terrorism.
Last month, a Justice Department spokesman said the omitted briefs were “unfortunately and inadvertently missed.”
Kyl said he was skeptical.
“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?” Kyl said at the time. “Or that he was not reminded about it when he later received our letter about recusals? That strains credulity.”
On Wednesday, a spokesman for Sessions declined to comment for this article. An email and a phone call to Kyl’s office were not immediately returned.
A Justice Department spokeswoman would not say whether, before Wednesday’s hearing, Holder had prepared to respond to questions about the omitted briefs.