By Dennis Loo
Attorney General nominee Eric Holder in written response to a question posed to him during his Senate confirmation hearing by Sen. Jon Kyl (R-AZ) stated:
“Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in ‘reasonable and good-faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.”
Newsweek described this written statement as “carefully vetted by Obama's White House lawyers.” In other words, Holder’s statement fairly reflects Obama’s and Holder’s intentions in this regard.
Holder’s comment came to light when a Holder aide pointed to it in an attempt to refute a Sen. Kit Bond (R-MO) assertion, reported by the Washington Times (“Holder Assures GOP on Prosecution”) on January 28, 2009 that Holder had promised him that he was not going to prosecute Bush officials for war crimes. The Washington Times article created a storm of concern among human rights groups and others who are rightfully determined that the Bush White House’s crimes against humanity be prosecuted. Holder and the White House rushed to try to reassure people that Holder has not promised the GOP anything.
Sen. Bond had been threatening to block Holder’s nomination in committee over this issue. Bond met with Holder privately this week twice and Sen. Bond emerged from those meetings supporting Holder’s nomination. As the Washington Times’ article relates it:
“[A]fter meeting with Mr. Holder twice over the past week and having received assurances that he was not intent on pursuing intelligence officials who acted in good faith with proper authorization in the conduct of interrogations, Mr. Bond decided to support the nominee, the [senior Bond] aide added.”
Bond is quoted in the article as saying, reiterating the Obama Administration mantra about “looking forward” and not “backwards”:
"’I believe [Mr. Holder] will look forward to keep the nation safe and not look backwards to prosecute intelligence operators who were fighting terror and kept our country safe since 9/11,’ Mr. Bond said in the interview.”
Elana Schor in TPM (Talking Points Memo) on January 28, 2009, questioning the veracity of the Washington Times’ article, cited the comments of two Democrats on the Judiciary Committee, beginning with Chairman Patrick Leahy:
"’It would be completely wrong if a senator said, 'I'll vote for you if you promise to withhold prosecution of a crime'," Leahy told me. "No senator would make a request like that. It'd be improper."
“Sen. Sheldon Whitehouse (D-RI), a Judiciary panel member and former federal prosecutor, had a similar response when questioned about the likelihood of Holder making the ‘assurances’ that Bond believes were offered.
"’It sounds a little improbable ... it's, frankly, improper for members of Congress to demand [a pre-determinative stance on] prosecutions.’”
Schor concludes: “Sounds like the Times report should be taken with a full shaker of salt.”
The problem with Schor’s conclusion here is that the GOP senator, Kit Bond, in this case, is actually being the more candid and accurate of the parties in this action. Sen. Bond did not misunderstand what Holder told him privately. Key senators do not withdraw their opposition to a nominee on the basis of misconstruing what a nominee really means. That is not how Washington politics work in such high-stakes games.
The signs of what Holder and Obama intend are clear from Holder’s written statement for the record. We don't even need to rely on Sen. Bond's representations about his meetings with Holder. As Holder himself says: "‘[W]here it is clear that a government agent has acted in ‘reasonable and good-faith reliance on Justice Department legal opinions’ authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.”
Note here that Holder specifically and personally describes this "reliance" on the DOJ opinions as "authoritatively permitting [a government agent's] conduct." In other words, Holder is accepting the GOP argument that DOJ "legal" opinions confer authority and thereby release from responsibility the actions of government agents engaging in torture.
Nuremberg rejected this fallacious argument when World War II criminals such as the Nazis who committed atrocities made it: "I was only following orders." Following orders is no excuse and not a legitimate legal defense for those who commit crimes against humanity. Holder and Obama both know this.
The phrase in quotes within Holder’s comment comes from Sen. Kyl’s question to Holder. As anyone who has been following this saga knows, when Bush justified his torture policies, he repeatedly referred to having his “alternative interrogation techniques” signed off on by attorneys at the Justice Department and the White House. They’re legal because attorneys said so, he said over and over again.
This is rather like the Mafia Godfather saying that he treats no one in an untoward fashion since he’s checked with his lawyers on everything he does, and they have assured him that it’s all copasetic. For the soon-to-be US Attorney General to be citing these transparently self-serving and worthless “legal” opinions as “authoritatively permitting” government agents’ actions is both ludicrous and ominous in the extreme.
Moreover, what Holder has conspicuously left out of this “answer” is the fact that torture as policy originated from the very top by Bush, Cheney, Rumsfeld, Rice, Bybee, Yoo, and the rest of this horrid gang. Systematic torture was not merely or mainly the actions of some unnamed “government agents.”
As Obama himself has described them in words and structure strikingly similar to the Holder statement: “I don't believe that anybody is above the law. On the other hand, I also have a belief that we need to look forward as opposed to looking backwards. And part of my job is to make sure that for example at the CIA, you've got extraordinarily talented people who are working very hard to keep Americans safe. I don't want them to suddenly feel like they've got to spend all their time looking over their shoulders and lawyering up…”
We certainly wouldn’t want to “lawyer” up those fine and extraordinarily talented CIA inquisitor torturers, would we? No, that would be uncivilized. It’s alright to beat and drown detainees since it’s being done by extraordinarily talented CIA agents. Lawyering up such fine individuals would be inhumane!