The Next Attack: Holder’s Amicus Curiae Brief Against Unlimited Presidential Power

As Jake Tapper reports, the next attack the McCarthyites have planned is on Eric Holder, for once saying in an amicus curiae brief that it’s possible following the Constitution will make it harder to detain potential terrorists.

In 2004 Attorney General Eric Holder was one of four former Clinton administration officials offering an amicus brief questioning President Bush’s assertion that he had the inherent authority to indefinitely detain as “enemy combatants” American citizens captured in the US.

The brief, offered in the case Donald Rumsfeld v Jose Padilla, can be read HERE.  Holder’s co-authors include former Attorney General Janet Reno, former deputy Attorney General Philip Heymann, and the former counsel for the CIA Jeffrey Smith.

A Republican official on the Senate Judiciary Committee tells ABC News that Holder did not disclose this amicus brief before his confirmation hearings.

The brief is actually refreshing in its simplicity. It recites all the means the executive branch has to combat terrorism, then says the President doesn’t also need the power to detain Americans without any judicial oversight. I can see why and how the Republicans will make a stink of it, but that doesn’t mean they are right.

But there’s a part of the brief that deserves particularly close attention–because it raises the implicit question of why the Bush Administration didn’t just charge Jose Padilla, if they could back up the claims they made about him.

When Padilla was arrested pursuant to the material witness warrant, his terrorist plans were thwarted. He was then available to be questioned to the same extent as any other citizen suspected of criminal activity. Moreover, the facts set forth in the President’s findings, and the facts presented to the District Court, are more than sufficient to support criminal charges against Padilla, including providing material support to designated terrorist organizations, 18 U.S.C. § 2339B; providing material support to terrorists, id. § 2339A; conspiracy to use a weapon of mass destruction, 18 U.S.C. § 2332a; and attempted use of a weapon of mass destruction, id. § 2332a(a)(1).36 Finally, Padilla’s history of travel outside the United States, previous criminal record, and terrorism-related activities clearly justified detaining him. 18 U.S.C. § 3142(e). In short, the procedures of the criminal law provided an ample basis to detain Padilla, to subject him to interrogation, and to keep him from carrying out any violent acts against the United States or any of its citizens. It is difficult to imagine any circumstances in which a terrorist would meet the standards for designation as an enemy combatant described by the government, see Pet. Br. at 27, and not be subject to arrest as a material witness or a criminal.

The difference between what the government did in this case, and what existing law authorizes it to do, is one of accountability and transparency. The government could have continued to detain Padilla, but would have been required to justify the detention to a court in an adversary proceeding, based on the traditional probable cause standard. [my emphasis]

But therein may lie the problem. Here’s footnote 36, describing the allegations the Bush Administration made against Padilla:

36 The government claims that Padilla traveled to Afghanistan, approached a senior officer of al Qaeda, proposed stealing radioactive material to build a “dirty bomb” and detonate it in the United States, researched such a project at an al Qaeda safe house in Pakistan, had “extended contacts” with al Qaeda, received training in furtherance of terrorist activities from al Qaeda, and was sent to the United States to conduct reconnaissance or terrorist attacks on behalf of al Qaeda. Padilla, 233 F. Supp. 2d at 572-73. [my emphasis]

Given what the government said it had against Padilla, Holder and the others say, “it is difficult to imagine any circumstances” in which the government couldn’t either charge Padilla criminally or continue to hold him on a material witness charge. They then rattle off the charges that would follow from the claims the government made against Padilla, the evidence they said they had.

And then noted that the only thing that would be required to hold Padilla would be an adversary hearing.

But that would very quickly bring us back to the charges, starting with the charge that Padilla had ties to Al Qaeda leaders. Leaders like Abu Zubadayah, on whose testimony these charges at least partly rely.

And for that–for not imagining that the Bush Administration had already made it nearly impossible to charge someone of these allegations because they had based it all on torture–for that Holder will be made the next target of the McCarthyites wrath.

39 replies
  1. harpie says:

    It might have been “difficult to imagine” such a circumstance on April 12, 2004 when this Brief was written; but that became a lot easier two weeks later [April 28, 2004] when photos from Abu Ghraib first became public.

  2. bobschacht says:

    Hmm. By my arithmetic, it took you about 27 minutes to move from having a concern but not having anything to say about it ( to having something to say about it here. You be quick!

    So, what is your concern?
    My guess is that either (1) Holder will recant, and fold like a cheap beach chair, or (2) that it will actually stiffen his spine. (I hope, of course, for the latter.) I happen to think that Holder is still in the process of trying to figure out what kind of AG he wants to be.

    Actually, this reads to me, in a way, like good news, considering the beating Liz Cheney has been getting for her “Al Qaeda 7” ad. I might actually hope that a McCarthyite attack such as you contemplate might get a similar reception.

    Bob in AZ

    • emptywheel says:


      My concern is that it is a problem this wasn’t disclosed. And because it wasn’t it’s going to fuel the McCarthyism. And the target of the McCarthyism will be opposition to detention w/o review.

      • demi says:

        Good Morning. Thanks for always doing the heavy lifting, EW.
        Whose responsibility would it have been to disclose? Holder’s? Or, would it have been those who didn’t like the brief?

          • demi says:

            Thanks, but, did he fail to do so in response to a direct question about previous work that would show why he should or shouldn’t be confirmed? I’m just slightly confused.

          • Phoenix Woman says:

            Ah, the irony of Holder having a potential problem now because he failed to disclose that he did the right thing back in 2004. Kinda like how Enron’s Tom “illusory profits” White finally was brought up short not for what he did at Enron, but for his opposing Bush’s planned invasion of Iraq.

            • demi says:

              Yes, the irony is the point. My question at 21 is probably not important. No snark.
              We’ll have to watch for the rest of the story. There’s so many dramas playing out these days. Whiplash.

  3. BillE says:

    A question, how much of this crap will Obamaco let happen before they actually do something about it. As in prosecuting some of these people who are rubbing there faces in it. It seems like some statute of limitations just ran out that makes the Cheney’s all happy to take shots or not (this would be a unique “all in” bet)

    When walking into a shit storm it does not behoove one to only look forward. Maybe you should look for a way to stop or avoid it. The best way would seem to be allow a real investigation to occur with public findings.

    I have no faith that the don’t criminalize policy differences crowd won’t win in this case.


  4. JasonLeopold says:

    Do you see any conflicts between this brief and the Justice Department’s position and subsequent friend of the court brief filings in Padilla’s suit against John Yoo?

      • JasonLeopold says:

        Reading the friend of the court brief and some previous Obama DOJ filings from last year, I think there may be some excerpts that suggest a different position from the 2004 brief. I’m going to pull a few, but it is likely open to interpretation.

          • JasonLeopold says:

            Haha! “current giz.” That made me laugh.

            What I was trying to do is find instances where there were contradictions between what was said then and what the DOJ said last year. On second look, I think it may be a reach, at least from my read.

  5. alinaustex says:

    [email protected]
    This could actually be more evidence of a growing rift between conservatives regarding Unitarian Executive power and Constitutional Guarantees. The other night now Pepperdine Dean Starr on KO said that this matter regarding attacking lawyers defending enemies of the state was a derogation of our entire jurisprudence traditions – Starr cited John Adams defending the Bristish troops in Boston as one example of America justices at its finest .
    The Cheneyites starting with David Addington are now at some risk of alienating totally the likes of Ted Olson and James Baker -And add to that PappaBush’s anger over how BigDick and the neocons “hijacked “Dubya’s two terms well we might actually see some accountabilty for the crimes committed by gwb43–
    Final sidebar it was political surreal theater at its best to see Cheney down here campaigning for Kay Bailey Hutchinson in her primary challenge against Gov Perry. Perry’s people tagged Cheney as a big spending Washington insider.

  6. tjbs says:

    …. but would have been required to justify the detention to a court in an adversary proceeding,

    EW you constitutional nit picker don’t you see if tried in criminal court it would establish a state custody chain and then you probably want the RED CROSS to stop by and see how it was going. If we had stayed in constitutional bounds there would be no chance to try out those cool Enhanced Interrogation Techniques that dick personally got a kick out of doing to his fellow human beings.

    No EW, following the constitutional boundaries would have meant everything was out in the open and above board and there was really no 4th branch of government otherwise known as OVP.

    • emptywheel says:

      well, my point was that they had ALREADY used the torture. That’s why they couldn’t stand an antagonistic hearing. That Bush had to do presidential detention bc the evidence backing his so-called terrorist claims was derived from torture.

      And, probably, the illegal wiretap program.

      • tjbs says:

        I agree but don’t dismiss it as oops rather a desire to use torture other then then a search for truth.I know torture doesn’t produce truth so did they.

  7. lysias says:

    If they had to use torture to get this alleged information, there’s a high probability that it is in fact false.

    And, if they had gone to trial, then that would have become publicly known.

  8. harpie says:

    “Filegate” judge: There’s no there there — and never was; At long last, federal Judge Royce Lamberth dismisses “Filegate.” Let’s not forget the fraud’s keenest promoters

    Summing up his findings, Lamberth wrote: “After years of litigation, endless depositions, the fictionalized portrayal of this lawsuit and its litigants on television, this court is left to conclude that with the lawsuit, to quote Gertrude Stein, ‘there’s no there there.'”
    In passing, the judge also mentioned his opinion of the House Government Operations Committee report on “Filegate,” compiled when Congress was in the hands of Republicans who believed that their purpose in Washington was solely to obstruct the Clinton administration, mainly by concocting and conducting bogus investigations. (Their history of irresponsibility and frivolousness offer a preview of the Republican agenda should they win control next fall.) Lamberth wrote that the House report was inaccurate and not “sufficiently trustworthy” to be relied upon for factual information, and therefore “inadmissible” as evidence in the case.

    But by all means, just continue to look forward, not back!

    • Phoenix Woman says:

      Thanks for the reminder!

      RE: the post topic — wow, could it be that Holder might actually wind up doing his job? Despite apparently trying very hard not to do so?

  9. Margaret says:

    I’ve become so disenchanted and cynical in the whole process and so disillusioned about the so called “rule of law” that I can’t come up with a cogent thought on this. The Republicans go extra Constitutional to torture people, start preemptive wars, hold people indefinitely and etc. The Democrats run on restoring the Constitution and the rule of law but when they get elected, they lack the guts to actually DO anything because the Republicans now defend their crimes by attacking those same people who are too afraid to prosecute them for it. This leaves voters disappointed and disgusted and resigned to the fact that nothing ever changes so they stay home next election and the Republicans win office. Then the Republicans once again go extra Constitutional in some other direction and the Democrats run on restoring…..
    And they say they wonder and fret over why people are apathetic and uninformed. I’ll vote. I always vote but sometimes it seems to me that it would be far less frustrating and stressful if I just hid my own head in the sand and let other people worry about it.

  10. razorbrain says:

    They love lynch mob mentality when they are the lynch mob. When they are the accused, they want every protection. They are like that about everything in life. Entitlement mentality with a vengeance. Fuck them, plain and simple.

  11. orionATL says:

    cheney’s are politically stupid people.

    cheney’s always use bad judgement, always go to excess.

    the fuse they have lit could explode in their faces (and fox’s, too).

    the only sensible political response to this pseodo-criticism is a defense of the constitution and the civil judiciary.

    doing so, however, requires spending quite a bit of time educating americans about what is involved.

    and putting together a bipartisan coalition.

    just the kind of work our prez professes to like doing.

    but, alas, democrats just hate to “waste” their power-time slowly educating educating the people.

  12. harpie says:

    More on Filegate, because it is not O/T:

    The Senate Judiciary Committee was also involved in investigating the matter, holding hearings beginning June 29, 1996, and focusing on allegations that White House was engaged in a “dirty tricks” operation reminiscent of the Nixon administration.

    Republican members of the Judiciary committee in 1996?

    [Chairman] Hatch, Thurmond, Simpson, Grassley, Specter, Brown, Thompson, Kyl, DeWine, Abraham.

    The three bolded names signed the 11/09 letter Marcy wrote about in the previous thread.

    • Mason says:

      Tapper wrote,

      Holder et al wrote that the “limitations” on Executive power “might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. 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.” (Emphasis mine.)

      To suggest that the hypothetical, which the authors subsequently rejected in favor of our way of doing things before 911, means that Holder and the other authors of the amicus brief are Al Qaeda sympathizers is even more absurd and ridiculous than calling the lawyers whom Holder hired to work at DOJ “The Al Qaeda Seven.”

      Liz Cheney and Bill Kristol sound like crazy people who should be involuntarily committed to a secure mental health facility as dangerous to themselves and others. Their continued dangerousness could be reviewed every 30 days until a mental health professional decides they are safe to be released.

      With the right medication, they may yet be able to become productive members of society. Please take a moment to pray for their recovery.

  13. politicalcircusblogdotcom says:

    The art of diversion, Holder has more problems than this. New York trials of terrorists, costing taxpayers millions, overlooking ethically challenged Congressmen in lieu of getting favorable votes, this guy has a history of incompetance, under the Clinton Admin. and now Obama’s….let’s get the facts out…don’t mislead your readers.

  14. orionATL says:

    type in

    and view the long list of filings in the padilla case.

    and reflect the bush administration was under legal attack.

    like hell republican bigwigs didn’t know holder was among those filing.

    the numbers of organizations and people filing is in the dozens.

  15. Leen says:

    this show happening now. Call in 800 433-8850 email drshow.wamu.

    talking about the Al queda 7 adds right now

    10:00Administration Debates Trying Alleged 9-11 Plotters in Civilian or Military Courts.

    President Obama may reverse Attorney General Eric Holder’s decision to try alleged nine-eleven plotters in civilian courts. Why the administration is considering an about-face, how it could affect plans to try other terror suspects and what it might mean for closing Guantanamo Bay.

    David Cole, professor of law at Georgetown University Law Center and author of “The Torture Memos: Rationalizing the Unthinkable”. Previous books include “Less Safe, Less Free,” and “Terrorism and the Constitution.”

    Bradford Berenson, former associate counsel to President George W. Bush (2001-2003), Former Chairman, Federalist Society, Criminal Law & Procedure Practice Group and Adjunct Fellow, American Enterprise Institute and a lawyer in private practice.

    Jane Mayer, staff writer, “The New York


  16. orionATL says:

    i cant find access to a searchable of holder’s confirmation

    nytimes has 88 pages of transcript.

    it would be important to know whether the padilla brief was mentioned at any point in those hearings.

    anybody know where to find searchable transcripts of public hearings?

  17. freepatriot says:

    If they had to use USED torture to get this alleged information, there’s a high probability that it is in fact false

    fixed that, so it don’t falsely assign a motive or “need” to the act of torture

    there was no need to torture people

    bush just WANTED to torture people

    /drive-by editin

    high everybody

  18. spanishinquisition says:

    “continue to hold him on a material witness charge”

    So is that a way to do indefinite detentions without calling them indefinite detentions? I can just imagine Obama making a big deal about no longer allowing indefinite detentions and then simply turning all those who had been indefinitely detained into “material witnesses” as well as doing the same thing to new people that come along.

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