Attorney General Eric Holder artfully skirts Bush-era legal problems facing the Department of Justice.
In a keynote speech at the opening of the West Point Military Academy’s Center for the Rule of Law last night, Attorney General Eric Holder made a point of breaking with the Bush administration by affirming the United States’ commitment to international law and acknowledging that the United States has not always lived up to those legal commitments. But even as he extolled the the military officials who’ve stood up for the rule of law, he carefully avoided mentioning the controversial legal policies initiated by the Bush administration that his own Justice Department continues to support. And he failed to explain how the Obama administration can credibly claim to uphold the rule of law when it refuses to investigate the most egregious legal violations by its predecessors.
“There are some today who argue that as the most powerful military force on earth, international laws will only hinder our efforts and endanger our strength,” said Holder in one of the stronger moments of his speech. “But I reject the very premise of that argument. . . . our strength as a country is amplified – not diminished – when we expand the sphere of the rule of law across the globe.”
In part, Holder’s statement was an implicit endorsement of Harold Hongju Koh, President Obama’s nominee for State Department legal advisor. Koh has been harshly criticized by conservative Republicans for writing that international law should guide all nations, including the United States.
But many of Holder’s other statements seemed more to highlight the controversies of his own Justice Department than to take any specific principled stand.
Holder acknowledged, for example, that the United States has “not always been immune to the impulse to sacrifice the timeless principles of the rule of law to the transient fears of the moment,” without specifically mentioning the Bush administration’s violations of the Geneva Conventions or the Convention Against Torture, or how he intends to respond to them.
Holder is now under great pressure to restore the law-abiding reputation that the United States lost during the Bush years. Whether he can do that will rest in part on how he responds to the Bush administration’s torture and abuse of detainees – all clear violations of domestic and international law. So far, he has skirted the issue, although he’s consistently claimed that “no one is above the law.”
One test will come Thursday, when the Department of Justice faces a court deadline to produce three controversial memos prepared by the Office of Legal Counsel under the Bush administration that reportedly provided legal justification for its harshest interrogation policies. If those legal justifications are flimsy, as is widely expected, they could serve as additional evidence of unethical and illegal conduct by the department. Previous OLC memos justifying extraordinary executive power, torture of prisoners and the suspension of the Bill of Rights during wartime have been harshly criticized, even by former Bush officials.
The Obama administration will also have to reveal soon how it intends to deal with the cases of some 240 men captured in the Bush “war on terror” and still imprisoned at Guantanamo Bay. (President Obama suspended proceedings before the military commissions created by the Bush administration until May 22.)
Holder did not say last night how he would address that problem — whether through the existing military commissions, the federal court system, the military justice system or some new “hybrid” court — but he pledged that his solution will be “grounded in the Constitution.” And heacknowledged that it’s been military lawyers who have most strongly advocated that the U.S. government adhere to legal standards.
“In our current struggle against international terrorism, when others surrendered faithful obedience to the law to the circumstances of the time, it was the brave men and women in the JAG Corps who stood up against the tides, many times risking their careers to do so,” said Holder, referring to Judge Advocates General who stood up to their superiors, like Pentagon General Counsel William Haynes, who favored bypassing the Geneva Conventions and other legal protections for wartime detainees. “We all can learn from their example.”
But has Holder himself learned that lesson?
Last night, the Attorney General referred to the internment of 120,000 Americans of Japanese descent during World War II as “one of the darkest moments in American constitutional history,” noting that the Japanese were imprisoned on suspicion of being dangerous, “without a single hearing or finding of fact.”
Holder never once mentioned that the United States is currently detaining about 600 men — some for more than six years — at the U.S.-run Bagram air base in Afghanistan. A federal court ruled recently that those men aren’t getting any meaningful hearings or findings of fact, either. Still, Holder’s Justice Department last Friday filed a document seeking to appeal the decision, which granted just three of the non-Afghan prisoners habeas corpus rights.
In an apparent attempt to justify other decisions of his department, which has broadly invoked the “state secrets privilege” to dismiss cases challenging government conduct, Holder admitted that many of the decisions he makes as attorney general “will never be known to the public or to the press, because even as we usher in a new period of openness and transparency, many national security decisions must by necessity be made in a manner that protects our ability to gather intelligence, investigate threats and execute wars.”
That need not mean that the executive will ignore the rule of law, he insisted.
“[A] need to act behind closed doors does not grant a license to pursue policies, and to take actions, that cannot withstand the disinfecting power of sunlight,” Holder said, alluding to U.S. Supreme Court Justice Louis Brandeis’s famous phrase, “sunlight is the best disinfectant.”
“In fact, it is in those moments – the moments when no one is watching – when we must be most vigilant in relying on the rule of law to govern our conduct,” said Holder.
“With every decision I make,” he continued, “I ask myself two questions. Will it stand up to scrutiny by the courts, and will it stand up to scrutiny by the American people.”
Yet in fighting to prevent scrutiny by the courts – both of secret government policies or of the government’s justification for the continued indefinite detention of hundreds of prisoners – the Attorney General has sought to eliminate the role of both the courts and the public as a check on executive power. Instead, he seemed to suggest last night, the American people should trust him.
The Obama administration’s supporters may want very much to be able to do that. But many of the Attorney General’s recent positions in ongoing cases suggest that that would not be wise. And fortunately, if the constitutional system that Holder praised so profusely last night means anything, it will not allow that.
Eric Holder would do well to keep in mind his own words: “Discarding the very values that have made us the greatest nation on earth will not make us stronger – it will make us weaker and tear at the very fibers of who we are. There simply is no tension between an effective fight against those who have sworn to do us harm, and a respect for the most honored civil liberties that have made us who we are.”
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