The Obama administration said on Wednesday that it will not seek new legislation from Congress authorizing the indefinite detention of about 50 terrorism suspects being held without charges at Guantanamo Bay. While that still upsets many civil libertarians who say the United States never ought to detain anyone indefinitely without charge, it’s at least better than the alternative, which some worried would have been broad new legislation that could have expanded U.S. detention authority beyond what it claims it has now.

Since Sept. 11 terrorist attacks,  the United States has claimed it has the authority to indefinitely detain fighters in the “war on terror” according to the laws of war. Critics counter that the fight against terrorism isn’t a “war” that allows the United States to take prisoners, and of course when it came time to granting detainees prisoners-of-war status, the Bush administration adamantly refused.

When President Obama said in his speech at the National Archives in June that he still believes there’s a category of people at Guantanamo who can’t be tried in criminal court or by military commission but are too dangerous to release, he sparked a vigorous debate about just what kind of “preventive detention” scheme the president can or should embrace.

The American Civil Liberties Union, among others, insisted that any sort of “indefinite detention,” whether by legislation or executive order, would simply be extending the unconstitutional Bush policy that Obama criticized before he took office. But some lawyers, worried that taking a hard line would lead to the adoption of a broad new detention policy that would extend beyond the detainees at Guantanamo, urged the administration to stick to the detention authorization that it already has under the laws of war.

That camp apparently won the battle.  On Wednesday, the administration said it will continue to hold the Guantanamo detainees without charge or trial based on the power it claims pursuant to the Congressional resolution passed after the attacks of Sept. 11, 2001, authorizing the president to use force against al-Qaeda and the Taliban.

On Thursday, the ACLU registered its disappointment.

“While the Obama administration is wise not to seek legislation or issue an executive order that would formalize an unconstitutional system of indefinite detention, it remains deeply troubling that the administration continues to maintain a de facto system in which detainees are held indefinitely without charge or trial,” said Anthony Romero, Executive Director of the ACLU, in a statement.

“Locking people up indefinitely without charge or trial violates our most fundamental laws and values. … It is important to keep in mind that even with today’s development, what we are left with is a continuation of the misguided detention policy of the Bush administration.”

The claims of former Vice President Cheney and other Bush administration officials that the authorization of harsh interrogation techniques was legal and effective has been repeatedly disputed and disproven by experts in interrogation, law, the military and diplomacy. Now the CIA’s own Inspector General during the Bush administration has rejected the claim. The CIA Inspector General’s 2004 report released today provides clear evidence that interrogators overstepped the already loose legal boundaries they were given by the Bush administration through flawed Office of Legal Counsel memos that excused the use of coercive interrogation techniques.

This report provides conclusive evidence of the concerns that I have long held about how this program was used, and it is why I fought for access to this and similar documents for years. I support President Obama’s decision to prohibit the use of such tactics. The conduct that is documented in this report illustrates the perils of the dark road of excusing torture down which the Bush administration took this nation. I also believe it underscores why we need to move forward with a Commission of Inquiry, a nonpartisan review of exactly what happened in these areas, so that we can find out what happened and why. Who justified these policies? What was the role of the Bush White House? How can we make sure it never happens again? Information coming out in dribs and drabs will never paint the full picture.

Leahy has been a strong advocate for a “commission of inquiry” to probe the full extent of what happened during the Bush administration and why.  Now let’s see if he’ll propose legislation to back that up, and convince his colleagues in Congress to support it.

That’s what the 2004 CIA inspector general report, released this afternoon, says.

Discussing the “extreme interrogation techniques” including waterboarding, the report acknowledges that “with respect to two detainees at those [secret CIA] sites, the use and frequency of one EIT, the waterboard, went beyond the projected use of the technique as originally described to DOJ.”  No matter.  Because the CIA went ahead and obtained DOJ’s permission to go ahead and use the more extreme versions of the technique, with more frequency than it had previously approved.

The reports says: “The Agency, on 29 July 2003, secured oral DOJ concurrence that certain deviations are not significant for purposes of DOJ’s legal opinions.”

The Justice Department, then, approved the more extreme and frequent use of the technique — the one that Holder, President Obama and most legal experts have called “torture.” How will Holder be able to limit those prosecutions to only CIA officials?  This is exactly the type of evidence that I think will take the investigation not only up the chain of command at the CIA, but should shift it over to the Justice Department as well.

As I noted earlier, the Center for Constitutional Rights and others has criticized the probe for its narrow focus on low-level interrogators who violated the CIA guidelines, approved by the Justice Department. (Although, as Spencer notes, the Justice Department’s announcement does not rule out any particular course of investigation or prosecution.) Many critics of the Bush administration’s tactics want a broader investigation of the lawyers and policymakers who sanctioned the torture and systematic abuse of detainees as well.

But the choice isn’t necessarily one or the other, say three former senior government interrogators.

In a letter sent on Friday to the chairmen of the House and Senate Judiciary and Intelligence Committees, former FBI official Jack Cloonan, and Defense Department interrogators Steven Kleinman and Matthew Alexander, wrote that “If the Attorney General takes this important step forward, it will reaffirm the enduring power of our system of checks and balances. … As former FBI interrogator, former military interrogator and career intelligence officer, we can attest that our law enforcement
agencies take seriously their obligation to uniformly enforce U.S. laws. To ignore evidence of criminal wrongdoing would incentivize future breaches of law.”

But it’s not enough, they continue.

Prosecutions of individuals who violated anti-torture statutes alone, however, will not prevent policy makers from making similar mistakes in the future. At the heart of the policy decisions buttressing interrogators’ use of torture and cruelty lay closed processes that have yet to be scrutinized with cool heads and wise counsel. Instead of putting in place the best policies for protecting American lives, policy makers ignored the advice of experienced interrogators, counterterrorism experts and respected military leaders who warned that using torture and cruelty would be ineffective and counter-productive. The path we chose came with heavy costs. Key allies, in some instances, refused to share needed intelligence, terrorists attacks increased world wide, and al Qaeda and likeminded groups recruited a new generation of Jihadists. A nonpartisan, independent commission with subpoena power should assess the deeply flawed policy making framework behind the decision to permit torture and cruelty. Our system of checks and balances is designed to produce sound policy decisions which advance our strategic interests and are in accordance with our core values of due process.

That system of checks and balances broke down during the Bush administration, and only an independent commission can assess how that happened and make recommendations to keep it from happening again, the interrogators wrote.

We ask you to urge President Obama to appoint a nonpartisan commission not to look backward but to provide recommendations for the future. Reviewing our policies and actions concerning detention and treatment of detainees after 9/11 will strengthen our system of checks and balances so that when faced with the next challenge, we get it right.

Less than a month ago these Chinese Muslim prisoners were the subject of intense debate in Congress and had no place to go, as Republicans vehemently opposed their release into the United States. Now, the Obama administration has apparently located two island paradises willing to take them.

“By helping accomplish the president’s objective of closing Guantanamo, the transfer of these detainees will make America safer,” said Attorney General Eric Holder in a statement today. “We are extremely grateful to the government of Bermuda.”

The Uighur prisoners have all been cleared for release for more than three years, after the government determined that none of them were “enemy combatants” as it had initially charged.

Attorney General Eric Holder and President Barack Obama (AP Photo)

In August 2007, Youssef Megahed, an Egyptian-born 23-year-old engineering student from Tampa, Florida was pulled over by a police officer while driving through South Carolina with a friend to a North Carolina beach for vacation, they said. But the police found low-level explosives in the trunk and arrested the two men. Megahed’s friend, fellow University of South Florida classmate Ahmed Mohammed, said he’d purchased the explosives to make fireworks, but the police, and later federal prosecutors, were not convinced.

Both men were charged with illegally transporting explosives and held in federal prison.

Illustration by: Matt Mahurin

Eventually Mohammed, who’s originally from Kuwait, admitted to creating a You Tube video showing how to make a remote control toy vehicle explode, and pleaded guilty to terrorism charges. He’s now serving a sentence of up to 15 years in prison.

But Megahed said he had nothing to do with the video, the explosives or terrorism. He’d met Mohammed at school and known him less than a year. A legal U.S. resident who’d immigrated to Florida more than ten years earlier with his family, Megahed insisted on exercising his right to a trial.

On April 3, after four days of deliberation, the jury in Megahed’s case delivered their verdict: not guilty.

That wasn’t the end of Megahed’s ordeal, however. Just three days later, he was surrounded by more than a dozen Immigration and Customs Enforcement agents and re-arrested while shopping with his father at a local Wal-Mart. This time, he was charged under the immigration laws as someone who the government “knows, or has reason to believe, is engaged in or is likely to engage” in terrorist activity. Although a legal U.S. resident just acquitted of all criminal charges based on the same facts, he now faces deportation to Egypt.

President Obama’s speech on Thursday at Cairo University, seeking “a new beginning between the United States and Muslims around the world” was, by most accounts, a huge success. Yet the story of Youssef Megahed, and other Muslim immigrants like him in the United States, could present an embarrassing obstacle to the administration’s attempts to smooth U.S. relations with the Muslim world. Muslims in Florida are already outraged, and the Megahed story has reportedly become a cause célèbre in Egypt as well. After all, the case raises a disturbing question: why does U.S. immigration law allow a man acquitted of criminal charges that he supported terrorism to be tried again on essentially the same claims in immigration court?

Immigration and Customs Enforcement spokesman Ivan Ortiz-Delgado said there’s no contradiction because Megahed was arrested for “civil violations of the Immigration and Nationality Act” and “is subject to potential loss of his lawful permanent resident status and deportation if he is found to have violated certain immigration laws. The charged immigration violations differ significantly from those charged in his criminal case, and he will have the opportunity to present the facts of his case before an immigration judge.”

Still, it’s only because Megahed is suspected of a tangential connection to terrorism that he’s being charged under the immigration laws at all. The situation facing Megahed and thousands of other Muslims deported after the terrorist attacks on September 11, 2001 is part of the government’s aggressive strategy to use the immigration laws to remove anyone suspected of terrorism, even if they could not be convicted on any charges in federal court.

But Megahed’s lawyer says that although the charges are technically different because they’re filed under the Immigration and Nationality Act, the facts alleged to support them are the same.

According to the charging document, Megahed is charged with being an Egyptian national who was driving a car that had explosives in it and a laptop computer which “contained files and images supporting Islamic extremism and Jihad as well as files related to bomb-making and explosives.” Megahed was not accused in the criminal case of any connection to the computer or the video, which was made by Mohammed.

Another immigration document filed by the Department of Homeland Security adds an additional charge that “the family desktop computer” at Megahed’s father’s house in Tampa contained “numerous videos, documents and an Internet search history that supports Islamic extremism, jihad against the United States, bomb making, explosive and numerous other military weapons references, all accessed over a period from early 2006 to August 3, 2007.”

The same evidence was introduced in Megahed’s criminal trial, says his lawyer, Charles Kuck, but there was no evidence that Megahed had used the computer, and many other people had access to it.

Ultimately, the evidence of the explosives in the car and the computer in his family’s home did not convince the jury that Megahed was guilty of supporting terrorism.

“Are you ready to convict based on someone’s Internet history? I’m not,” the foreman of the jury that acquitted Megahed told The Wall Street Journal. In a highly unusual move, he and three other jurors issued a statement protesting the second arrest by immigration authorities after Megahed’s acquittal at trial.

The immigration arrest “may be ‘legal,’ but that doesn’t make it right,” says the statement, published in the St. Petersburg Times.

The burden of proof in immigration proceedings is lower than in criminal cases, where the government must prove the charges “beyond a reasonable doubt.”

In immigration cases, “the government has to prove by clear and convincing evidence that there is reasonable grounds to believe that this person has engaged or will engage in terrorist activity,” explained Kuck, adding: “it’s hard to even know what that means.”

Although the evidence produced in immigration proceedings is not publicly available, the government is allowed under the law to use exactly the same evidence it used in federal court that didn’t convince the jury of Megahed’s guilt.

“The facts are all the same,” said Kuck, who’s seen the evidence filed with the court. “Every fact they have given the court so far is identical. Do you think they wouldn’t have given the trial court evidence they have to support their claims that he’s supporting terrorism?”

Megahed’s immigration trial is set for August 17, but he’s been in an immigration prison since he was arrested by ICE on April 6. Under DHS rules, a suspect who is charged with being deportable on terrorism grounds must be detained until his trial.

Although Megahed’s case may be the one that comes to President Obama’s attention on his visit to Egypt, he’s hardly the only Muslim immigrant facing this seemingly surreal situation.

In mid-May, after two earlier trials ended in hung juries, the Justice Department won five convictions in a case against six men in Miami (known as the “Liberty City Six”) accused of plotting to blow up the Sears Tower in Chicago. The man acquitted, an immigrant from Haiti – Lyglenson Lemorin – was then re-charged based on the same evidence under the immigration law.

“It’s not double jeopardy because it’s a civil proceeding not a criminal proceeding,” explained Kuck, who also represents Lemorin in his immigration case.

In the Lemorin case the government was trying to prove three things, said Kuck. That Lemorin was a terrorist, that he affiliated with terrorists, and that he gave material support to terrorists. The immigration judge said he was not a terrorist, said Kuck, but said he “affiliated with terrorists” because he hung around with these guys who were convicted,” and he “gave material support them by working at the drywall company was owned by one of them,” Kuck said.

The judge found Lemorin removable on those two grounds, but his lawyer claimed that he fears persecution if he is deported to Haiti, because the judge had just essentially declared him a terrorist, and “they do bad things to terrorists there,” Kuck said. Kuck said he would appeal any adverse ruling. In the meantime, Lemorin remains in federal detention.

In another case, Sami Omar Al-Hussayen, a Saudi graduate student in Idaho, was prosecuted in 2004 on terrorism charges for his volunteer work on a Web site for a Muslim charity. Prosecutors said the web site contained secret pro-terrorism messages.

Al-Hussayen was charged under a clause that expanded the definition of “material support” to include those who provide “expert advice or assistance” to terrorists’ cause.

The jury didn’t buy it: “There was not a word spoken that indicated he supported terrorism,” juror John Steger, a retired federal employee told the Seattle Times after the trial. “It was a real stretch.”

He was also charged separately for immigration violations. “They were similar facts, but technically different charges,” David Nevin, his lawyer, explained. Prosecutors charged that al-Hussayen had earned about $300 over his five years of volunteering for the charity, in violation of his student visa, and that he’d failed to list the Islamic Assembly of North America as an organization he belonged to, although all men entering the country after 9-11 were required to list the organizations to which they belong.

At trial, Al-Hussayen was acquitted of the terrorism charges, but jurors deadlocked on the immigration violations.

By this time, Al Hussayen had been in jail for 15 months. To avoid waiting for and enduring another trial, he agreed to plead guilty to immigration violations and was deported to Saudi Arabia, where he was born.

Charles Kuck said he knows of several more such cases pending. Even though as a legal matter the government is allowed to charge an acquitted defendant again in immigration proceedings, as a policy matter some say it’s neither fair nor wise. The American Civil Liberties Union and several human rights organizations have urged the Obama administration to drop the immigration charges.

In a letter to Attorney General Eric Holder, Ramzy Kilic, Executive Director for the Council on American Islamic Relations in Tampa; Melva Underbakke of Friends of Human Rights, and Chuck Leigh, president of the Florida Council of Churches, wrote:

“The American Muslim community is convinced that Megahed’s arrest, just after he was exonerated in Federal Court, sends the message that the U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS) cannot afford the American Muslim community with the same freedoms and justice it does to other Americans. American Muslims perceive this as an obvious pursuit of an individual, based upon his religious affiliation, ethnic and/or national origins. The DOJ and DHS must remain consistent in treating individuals fairly…You must intervene on Megahed’s behalf personally, in order to end the continued alienation of our community as well as the American Muslim community.”

With President Obama now facing Muslims in Egypt precisely to assure them that the United States treats Muslims fairly, and that both share the “principles of justice and progress” and “the dignity of all human beings,” as he put it today, cases such as Youssef Megahed’s pose a serious test.

In response to questions from Sen. Russ Feingold (D-Wis.), Holder wrote:

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

And also:

I firmly believe that transparency is a key to good government.  Openness allows the public to have faith that its government obeys the law.

As for the disclosure of Office of Legal Counsel opinions, which the ACLU, among others, has been pushing the Justice Department to turn over, Holder wrote:

“Once the new Assistant Attorney General in charge of the Office of Legal Counsel is confirmed, I plan to instruct that official to review the OLC’s policies relating to publication of its opinions with the [objective] of making its opinions available to the maximum extent consistent with sound practice and competing concerns.”

Last week, the ACLU made its case for disclosure in a letter the Justice Department:

Releasing the memos would [...] signal to Americans, and to the world, that you intend to turn the page on an era in which the OLC served not as a source of objective legal advice but as a facilitator for the executive’s lawless conduct.

We’ll see how Holder and the Obama administration live up to those promises when they respond to the Jeppesen case I wrote about last week – scheduled for oral argument on Monday — as well as several important FOIA cases that I’ll be writing more about soon. Stay tuned.

In response to Sen. John Cornyn’s (R-Texas) question of whether Holder would have recommended pardoning the FALN members after Sept. 11, Holder used the term, “post-9/11 world,” and said:

I think that I would have viewed it differently. I think the recommendation that I had made would be different in this way. I think I would have said either this is something we shouldn’t do, or to the extent that there’s a desire to do something, the sentences should not be commuted to the extent that they were.

Considering that a “post-9/11 world” was the terminology used by Attorneys General John Ashcroft, Michael Mukasey and Alberto Gonzales to frame the expansion of presidential authority that followed the Sept. 11 attacks, it’s a little surprising to hear this kind of thought pattern from Holder. Pander-ific.

The nomination of former Deputy US Attorney General Eric Holder for the top job at the Department of Justice has given some conservative activists, attorneys, reporters and bloggers hope in an otherwise gloomy round of cabinet-level confirmations. Conservatives have seen Holder, now an attorney at Covington & Burling LLP, as the most “beatable” of President-elect Barack Obama’s high-profile nominees.

While Republican criticisms of Holder have turned Thursday’s confirmation hearing into a high-profile event, few seriously expect that Holder will be rejected by the Senate. Few argue that such a rejection was ever a serious possibility. Republicans led by Sen. Arlen Specter (R-Penn.), the committee’s ranking member, see the hearing as a “trial” for Holder that he can win if he allays a small number of concerns about his work for the Clinton administration and its second-term presidential pardons. One of the witnesses who will testify for the Republicans has not even taken a position on whether Holder can be blamed for one of the pardons.

Illustration by: Matt Mahurin

The result will be a contentious hearing in which Republicans draw out Holder’s roles in the Clinton pardons, his view of the Second Amendment, and his fealty to presidential power. That’s as far as it will go, and as far as disgruntled conservative activists expect it to go. According to one Senate staffer, Republicans are wary of what would happen were they to “make a real effort to defeat Holder, and lose.”

“We’re aware that elections have consequences,” said Eric Pratt, whose Gun Owners of America are actively opposing Holder and testifying against him. “We’ve also won fights that we weren’t expected to win.”

The first signs that Holder’s nomination would be somewhat contentious came in mid-December, two weeks after President-elect Obama announced the choice. Eight of the nine Republican members of the Senate Judiciary Committee requested documents from the Clinton Presidential Library pertaining to the Rich pardon, the 2000 repatriation of Elian Gonzalez to Cuba, and other issues. Sen. Jeff Sessions (R-Alabama) was not part of the request, and while he promised “tough questioning” of Holder while he “hope[d] to be able to be supportive.” This added to Sen. Orrin Hatch’s (R-Utah) promise that he “intend[ed] to support” Holder were early signs that Republicans were not girding for total war against the nominee.

There was, however, a change in tone after the Senate learned that Holder had left work for troubled Gov. Rod Blagojevich (D-Illinois) out of his initial answers to its questionnaire. That news broke on December 17; on January 6, Specter delivered a lengthy statement on the Senate floor that raised questions about Holder’s honesty, asking if his view of executive privilege mirrored that of former United States Attorney General Alberto Gonzales.

“I am not passing judgment on the nominee,” said Sen. Specter, who compared the coming hearing to a day in court. “I am prepared to give Mr. Holder a full opportunity to explain his past actions and convince the Committee and the Senate that his record warrants confirmation.”

The days between that statement and today’s confirmation have been days of document-digging by Senate staff and increased lobbying from Second Amendment groups, but neither activity has chipped away at Holder’s chances. According to one account, the National Rifle Association was asked to testify against Holder. It declined. NRA executive vice president Wayne LaPierre and executive director Chris Cox sent a formal letter to the committee citing “substantial concerns about his ability to perform the duties of Attorney General in a manner that respects the Second Amendment,” but they declined to include a vote on Holder in their annual scores of senators. That stoked anger on conservative blogs like RedState.com, whose managing editor Erick Erickson called the NRA’s leaders “pitiful sellouts.”

“I’ve had both Judiciary committee staffers call me and NRA staffers call me to raise hell about not scoring Holder,” said Erickson yesterday. “They all say they don’t know that he is beatable, but probably could be beatable given which Democrats are up for re-election in 2010.” However, only two of the seventeen Democratic senators who face re-election in 2010 come from states won by Sen. John McCain (R-Arizona).

Only one of the witnesses called to today’s hearing by Republican members, lawyer and scholar David P. Halbrook, is expected to address the Second Amendment issue at all. The other two witnesses, Joseph Conner and intelligence consultant Richard S. Hahn, were called to discuss President Clinton’s 1999 pardon of 16 members of FALN, a Puerto Rican terrorist group. Conner’s father Frank was murdered by the group 34 years ago, and Hahn has worked with him in the past. However, neither man is planning a testimony that indicts Holder or brings to light new information.

“I don’t much about Eric Holder,” said Hahn yesterday. “I don’t know who in the Department of Justice pushed for the clemencies in 1999, as that’s shrouded by executive clemency. While Hahn said that anyone who pushed for clemency “abandoned their responsibility to their office, their responsibility to the victims, and their responsibility to the American public,” he saw his role in the hearing as educating the Senate about the FALN, not questioning whether Holder was fit to become attorney general.

“Not knowing the facts of what he did or didn’t do,” said Hahn, “I have a hard time making that sort of a judgment call.”

Democrats have responded to the conservative and Republican offense on Holder with a much harder-edged and declarative defense. Democrats have collected letters of support for the nominee from Republican appointees such as former Solicitor General Ted Olsen and former Attorney General Bill Barr, former Holder critics like Republican-turned-Liberarian Bob Barr (who grilled Holder over the Marc Rich pardons in 2001), and 36 state attorneys general.

At the same time, Senate Judiciary Committee Chairman Pat Leahy (D-Vermont) has baited Republicans in general with claims that they are holding Holder to a different standard than George W. Bush’s nominees and that Specter is doing a political favor. “It may be coincidence that his positions have been those of Karl Rove,” said Sen. Leahy this week, in one of several statements making that connection. “I suspect it is coincidence.”

Leahy was referring to the widely-circulated rumor that Karl Rove was “helping lead the fight” against Holder, a rumor first aired one month ago by Ceci Connolly of the Washington Post. But staff with the Judiciary Committee denied the rumor, questioned its provenance, and denied that Rove was advising or in contact with anyone working on the hearing.

“There may not be anything in Holder’s past that not makes him unworthy of being confirmed,” said Brian Darling, director of Senate Relations at the Heritage Foundation. “There might be something we haven’t seen yet. The Senate should take a look.”

When his confirmation hearing begins on Thursday, President-elect Barack Obama’s pick for the next attorney general is expected to face some tough questions. Republicans in particular have criticized Eric Holder for his role in the controversial pardons of fugitive financier Marc Rich, and the commutation of the sentences of 16 members of a Puerto Rican terrorist group convicted of bombings, bank robbery and conspiracy.

But critics on the left have their own set of concerns. Although they’ve generally been less willing to voice them, Holder’s eight years in private practice, during which he represented some of the world’s wealthiest corporations accused of fraud, discrimination and funding terrorism, among other things, leads some civil and human rights advocates to worry that as attorney general, Holder may not be as tough on corporate wrongdoing as they would like him to be.

Illustration by: Matt Mahurin

As a partner who last year earned more than $2 million at the Washington law firm Covington & Burling, Holder represented Merck & Co in a settlement charging massive Medicaid fraud, the National Football League in Michael Vick’s dogfighting case, and defended MBNA Corp. (now part of Bank of America), Purdue Pharma and GlaxoSmithCline against claims of race, gender and national origin discrimination.

Perhaps most controversial is Holder’s representation of the banana giant Chiquita Brands International against charges that the company paid millions of dollars to a right-wing Colombian paramilitary group that has killed thousands of civilians, including prominent Colombian labor leaders.

“You’re influenced by the people you’re working with and on behalf of,” said Terry Collingsworth, a lawyer who represents families of victims of the paramilitary group known as the AUC, or Autodefensas Unidas de Colombia, in one of several lawsuits pending against Chiquita for monetary damages.

Represented by Holder, Chiquita pleaded guilty to criminal charges in 2007 to paying about $2 million dollars as protection money to AUC guerillas, whom the company claims had threatened to harm Chiquita employees. Although the United States had deemed the AUC a terrorist organization in 2001, making it a crime for a US company to pay them anything, Chiquita continued making the payments for several more years, until 2004, when it sold its Colombian division.

“You develop relationships with your clients and you can start to adopt an ideology of that class and it could cause you to view the corporate world as different, more important than others,” said Collingsworth.

Collingsworth is particularly bothered that Holder apparently used his influence as a former assistant attorney general to win for Chiquita what many lawyers call a “sweetheart deal.”

In the criminal plea agreement, Chiquita admitted to having paid more than $1.7 million to terrorists between 1997 and 2004. Those payments were designed to protect Chiquita’s Colombian operations, which earned $49.4 million between just 2001 and 2004, according to the government’s sentencing memorandum.

When the Justice Department finally indicted the company in 2007, the government concluded that Chiquita senior executives knew these were illegal payments made to a designated terrorist organization. Chiquita had alerted the DOJ to the payments in 2003, but although the department told the company that the payments were illegal, neither the Justice Department nor Chiquita did anything to stop them. The company and its executives continued to make the payments until February 2004, despite the warnings of their own outside lawyer. (That lawyer was not Holder or his law firm.) Yet the plea agreement, although requiring Chiquita to pay $25 million fine, did not even name, let alone prosecute, any of the company’s officers.

“They paid $25 million for paying a terrorist organization that killed more than three thousand people,” says Collingsworth. “No interest, payable over five years. There is clear evidence that Chiquita board members directly participated in these decisions and yet they were allowed to remain anonymous and they weren’t individually charged. That is a sweetheart deal. It’s unheard of to participate in a felony of that scale and then remain anonymous in the plea agreement.”

Holder, representing the company, “clearly did have access,” says Collingsworth. “He used to be the Associate Attorney General. Is that his method of doing business? Or is he going to have a clean transparent process with new rules of how people do business with the justice department?”

Others have argued that Holder actually assisted in the obstruction of justice by encouraging the Justice Department to conceal the executives’ names on his client’s behalf. When the Colombian attorney general later indicated that he wanted to extradite Chiquita officials to stand trial in Colombia, he didn’t know which officials had been involved.

Human Rights Watch has specifically asked the Justice Department to encourage more transparency about the funders of such violent paramilitary organizations in Colombia. In a letter sent last May to Attorney General Michael Mukasey, Human Rights Watch executive director Kenneth Roth wrote that “the Department of Justice should seek to create meaningful legal incentives for these mafia bosses to fully disclose information about their network of accomplices, including not only those involved directly in drug trafficking but also politicians, members of the military, financial backers and others who, over the course of decades, may have helped them to commit atrocities and to conduct drug trafficking operations with impunity.”

“You do make choices,” said a labor lawyer who’s followed the Chiquita case but did not want to be named. “Here’s the guy you’re going to put as head of the Justice Department, and in the end he worked to obstruct justice.”

Meanwhile, the former Colombian paramilitary leader Salvatore Mancuso, now in US custody, told CBS’ 60 Minutes that other American companies, such as Dole and Del Monte, also made payments to the AUC. Both companies deny making such payments; neither has been indicted. But Rep. William Delahunt (D-Mass), who met with jailed former paramilitary leaders in Colombia last year as part of a Congressional investigation, has also said there’s evidence that American companies besides Chiquita made illicit payments to Colombian terrorists.

As Dan Kovalik, a lawyer for the United Steelworkers Union, wrote in the Huffington Post in November: “Query whether, as Human Rights Watch recommends, a Justice Department under Holder would be interested in pursuing this and other similar leads. This is a serious matter given the fact that the Justice Department has already come under great scrutiny for turning a blind eye to what appears to be rampant corporate support for terrorist groups in Colombia.”

Not everyone criticizes Holder for his role defending Chiquita, though. Marco Simons, Legal Director for EarthRights International, which is also representing Colombian victims suing Chiquita, says that although the civil case is in its early stages, based on his limited interaction with Holder, “he seemed like a very agreeable guy. Obviously we disagree with some of the positions he took on behalf of Chiquita. But we don’t have any reason to believe that those are his personal positions. Lawyers take positions on behalf of clients all the time that they may not necessarily agree with themselves.”

Indeed, civil rights organizations have generally been very supportive of Holder’s nomination, at least publicly. Earlier this month, the Leadership Conference on Civil Rights (LCCR), the NAACP, the National Council of La Raza (NCLR), and the National Women’s Law Center (NWLC) joined U.S. Senators Sheldon Whitehouse, (D-R.I.), and Benjamin Cardin, (D-Md.) to urge Holder’s swift confirmation. Many other groups have signed letters supporting Holder and expressing confidence in his ability to restore the effectiveness and integrity of the Department of Justice after an unprecedented injection of conservative political ideology undermined enforcement and morale under President Bush and his successive Attorneys General.

Still, from a civil rights perspective, Holder’s background is far from ideal, particularly because much of his work in private practice involved defending major corporations against discrimination claims.

That may be why several civil rights organizations declined to comment on Holder’s nomination; some lawyers say they feel pressure from the liberal legal community not to openly criticize Obama’s picks.

That hasn’t silenced some independent lawyers, however, such as Lynne Bernabei, a leading employment attorney in Washington who represents plaintiffs.

“Defense counsel tend to say there are no meritorious discrimination complaints, or at least very few,” said Bernabei, referring to Holder’s discrimination defense work for banks and pharmaceutical companies. “If you have that attitude it will make you less enthusiastic about enforcing the civil rights law. That’s simply a fact of life that what you do in your career as a lawyer will inform your attitude on things.”

Bernabei is not surprised by the appointment, however. “A lot of these appointments are corporate lawyers. They’re the ones who give to the campaigns. So those are the people that are going to end up getting appointments.”

In the end, it may be Holder’s corporate experience that helps him win the support he now needs from Senators on both sides of the aisle.