Whose Non-Disclosure Was Worse: Bybee’s or Holder’s?

John Kyl has officially announced he intends to waste an oversight hearing on March 23 beating up Eric Holder because he did not disclose an amicus brief opposing unlimited Presidential power.

Kyl told members of the committee that panel Republicans will question the Attorney General about his 2004 amicus brief that recommended the Supreme Court stop the Bush administration’s efforts to try Jose Padilla as an enemy combatant.


Kyl called the non-disclosure of the brief “rather distressing.”

“Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.

And the other Republicans on the Senate Judiciary Committee are practicing their pout-rage, as well.

Senator Jeff Sessions of Alabama, the ranking Republican on the committee, said he was “deeply concerned” by Mr. Holder’s failure to disclose the brief during his confirmation.

“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Mr. Sessions said in a statement. “This is an extremely serious matter and the Attorney general will have to address it.”

Now, as I said earlier, Holder clearly should have disclosed this brief–though his views were already well known.

But he’s not the first nominee to go before SJC who failed to disclose key legal writings. After all, Jay Bybee secured a lifetime appointment as an Appeals Court Judge without disclosing the fact that he rubber stamped legal sanction for torture. And unlike Holder, Bybee’s actions were totally unknown at the time. At the time, just one Democrat, Jane Harman, had even been briefed that CIA was doing the torture (though Pelosi had been briefed that they were considering torture), the memos specifically had not even been revealed to her, and even if she knew about it, she would not have been permitted to share it with SJC.

And yet, barring Bybee’s resignation or prosecution in some international court, Bybee will be serving on the 9th Circuit long after Holder has moved on as Attorney General.

So whose non-disclosure is more of a problem? Jay Bybee, who failed to hint that he had authorized torture? Or Eric Holder, whose views were well-known and tested during his confirmation hearing?

47 replies
  1. Jim White says:

    Very good point. And one that even the Democrats on SJC will completely overlook, I’m sure.

    (You’re missing a word or two at the end of the first sentence.)

    • klynn says:

      I’m on day four of all-nighters with sick kiddos. There. Just. Is. Not. Enough. Coffee. Today.

      Thanks for the posts EW. Plan to send a copy of this to each member on SJC.

    • bobschacht says:

      Nah, you don’t need more coffee. It is always a difficult thing to proof-read your own stuff, because you know what you meant to say.

      This is something your new assistant, paid from your Fundraiser kitty, should help you with. In fact, there are probably certain readers here who would be available to do proof-reading for you for free. We can do more than cheer from the sidelines, y’know. If you don’t already have a corps of volunteers, arranged in categories by their strongest skills, you should start setting up such a team.

      Bob in AZ

  2. bmaz says:

    “Are we expected to believe that then-nominee Holder…forgot about his role in one of this country’s most politicized terrorism cases?” Kyl asked.

    Hahahaha. Good one. Straight out of the mouth of one of the horse’s asses who, and whose party, politicized it. Very rich.

    And, again, the amicus brief is really vanilla to my eye; it is no piece of left wing outcry in the least.

    Also, Mukasey would appear to have had some disclosure issues as well; however, since he is out of government, I guess that is not as germane. Of course there is also Brett Kavanaugh and, of course, the profound dishonesty of John Roberts; those guys are still with us, maybe they should be investigated as well.

    • cinnamonape says:

      And if it was the most “politicized” then why was Kyl unaware of the amicus brief at the time. After all it wasn’t secret. It was presented to the Supreme Court, and part of the docket of briefs available to both the Bush Administration and the public.

      Disclosure, it would seem to me, would mainly be related to those items that are NOT public, and could present a conflict of interest.

      This is just an example of Kyl not doing his research adequately.

  3. 1der says:

    Why I feel the Democrats are such pussies at this politics game. Anyone who’s been watching the Republicans in action over the years would see this hissy fit coming a mile a way. The Dems could have cut this off before Kyl and the Gang opened their mouths by calling Holder to the Hill yesterday to explain himself and Holder could have easily offered his mea culpa’s and Gonzalez/Ashcroftian “I don’t remember. x 10” to a petulant dais of idiotocracy. Then the AG could move on to more important things like covering the asses of Bagram’s torturers.

  4. boloboffin says:

    So all you have to do to hide a document from the Senate Republicans is to submit it as a public document in a highly controversial case before the Supreme Court and cross your fingers that no one will notice? Amazing!

  5. scribe says:

    More concisely, EW, the amicus brief in question doubtless was posted on line for anyone to see when it was filed with the Supreme Court (or shortly thereafter – I don’t recall exactly when electronic filing and instantaneous posting on the net of briefs, amicus and otherwise, became the rule with the S.Ct.). So it was available to anyone with Google, in seconds. That the Committee (particularly the Rethugs) neither caught nor raised a stink about it during his confirmation hearings means a waiver.

    Let us also productively compare this non-disclosure to another instance of non-disclosure to the Committee. You will recall during Chief Justice Roberts’ confirmation hearings the Committee went to the Reagan Library to retrieve copies of his work in the WH counsel’s office (under Fred Friendly, IIRC). And, lo and behold, when they arrived, it turned out someone had beaten them to the punch and pulled some of the relevant documents. And they never showed up. But, the Committee (Mr. Sessions among them) were quite satisfied with Mr. Roberts’ and the Bush WH’s non-disclosure of those documents.

    You’ll recall one of Roberts’ duties in the Reagan WH Counsel’s office was shepherding judicial nominees and, IIRC, Sessions was among those. Only, his failed because he was such a cracker klukker piece of shit.

    But, hey, IOKIYAR.

    • BillE says:

      And wasn’t there more to the non disclosure that was fine with the thuglicans. Both Roberts and Alito worked at DOJ. My fading memory reminds that the Gorsuch matter and many other things were requested but never supplied before the confirmation votes. Like you said IOKIYAR.


  6. tjbs says:

    . So it was available to anyone* with Google, in seconds. ‘
    * who knows how to use a computer.
    Jeff sessions Googling , I think not.

    EW @ 2 is it you’re seeing red dealing with this garbage ?

  7. BoxTurtle says:

    Holder’s non-disclosure is unquestionably worse. Bybee’s is in the past and we’re looking forward.

    Boxturtle (Besides, Holder is a democrat and Bybee is a republican)

  8. earlofhuntingdon says:

    Just a little news to cheer on Big Dick and Little Liz and their cohort of amenable lawyers. The Germans are debating whether to release details of the Adolf Eichmann files they have kept secret for fifty years. They would detail how Eichmann escaped from Germany, possibly with help from German, Italian and Vatican officials, and how he lived openly in Argentina for years before he was apprehended by Israelis and brought to Israel for trial, conviction and, ultimately, hanging.

    His and other former Nazis’ open and notorious presence in Buenos Aires may have been made possible by a culture of tolerance – the German embassy there not only gave Eichmann’s wife and children a passport, in their own name, but issued one to Josef Mengele, too – created by the former-Nazi German ambassador, Werner Junkers.

    In fact, the culture of cooperation was so pervasive that the German prosecutor who knew of Eichmann’s whereabouts traveled to Israel to tell the Israelis rather than send it up the chain of command to his own government, for fear that word would leak and Eichmann would abscond somewhere else. In the end, though, Mr. Eichmann was brought to justice. Something that ought to keep Mr. Cheney and his family up at night for some time to come. The same, perhaps, for Messrs. Addington, Gonzales, Yoo and others.

    An Argentinian journalist, Uki Goni, an expert on post-war Nazi fugitives, has a take that Mr. Holder, his DoJ and his political bosses would do well to consider:

    Goñi believes releasing the information will do more to boost Germany’s reputation than besmirch it. “Whatever the German secret service did in the 1950s should not embarrass anyone today,” he says. “The only thing that should be an embarrassment today is that they are trying to hide that information.”

  9. JohnLopresti says:

    The Bybee question is interesting. I would imagine the hearing committee has a way for nominees to provide closed session in camera disclosure. Did Bybee take that avenue, or put blinders on the Senators? There is, I believe, an (Irish) slang term about snookering…

    Homeplate umpire JGRoberts even gloated about the issue of nonproduction of Reagan Fielding era papers. After his nomination effort was successful, he returned to the scene of the document archive; where, in one of his classic riffs of insouciance he criticized the librarians who produced several archived dossiers of his writings:

    From the local paper*s March 10, 2006 report of the Simi Valley library speech by JGRoberts March 8 2006:
    **…After his nomination to the Supreme Court in July 2005 to replace retiring Associate Justice Sandra Day O*Connor, Roberts recalled how more than 60,000 pages of documents from his time working in the White House were pulled from the library*s archives. They were documents used during his confirmation hearing before the Senate Judiciary Committee last year. To the library*s archival staff, Roberts sarcastically quipped, *Thanks a lot,* eliciting a roar of laughter from the audience.**

    However, with respect to the Scotus 03-1027 amici document signed by Reno, Holder, Philip Heyman, Jeffrey H. Smith, I can understand why the Republicans on the committee are yapping; it is an urbane dismantling of the wildcatting insular Bushco theoretical LoneBranch underpinnings; the amici are top flight talent from the legal community. It is plain vanilla, perhaps, but make that three scoops, less milk, and extra malt. Footnote; the Jose Padilla court papers are fairly dispersed on the internet, each venue bearing its own unique case number. The link provided above for the brief is h/t mainjustice, as a readily accessible locus; and, caveat the archive site document longevity halflife at Scribd.

    Several of us did work on the Simi scandal, so that is not repeated here at fdl. Nara has a plain mocha page of some of the document production which it traced in the JGRoberts matter, there.

        • eCAHNomics says:

          Diet 7-Up? Or Fresca, as you will. As it’s an edrink, no reason to pretend I have it in house. Pouring, with ice, if you like.

      • nahant says:

        Real MSNBC have been talking about it … Wife pretty bad but they don’t think life threatening, if a broken neck back and a few other little breaks here and there…

          • nahant says:

            Saw that eCHAN… But still give him a wee bit O’ break…
            I do know I wouldn’t want his job… No F”ing way..

          • Kelly Canfield says:

            Certainly sad for Reid, but as far as relating to Job? Maybe, and maybe not so OT for the subject about Holder/Bybee.

            When the soothsayers saw that a redeemer had been born, Pharaoh asked of his three top advisors – Balaam, Jethro and Job, what action should taken. Balaam advised Pharaoh to destroy the deliverer (Pharaoh tried to take his advise and had all male newborns thrown into the Nile). Balaam was given great rewards by Pharaoh. Jethro advised that the treaties between Egypt and Grand Viceroy Joseph and his father Jacob, be honoured. Jethro was banished. Job, not wanting to go along with Balaam and yet fearing the fate of Jethro, fled and gave no advise.

            Jethro is Moses’ father-in-law btw. Anyhow it[s tell the truth and be banished, yet ultimately redeemed, be outright evil and punished, or do/say nothing and be punished, which appears to be the course for Holder and Reid.

            edit: link to the Midrash about the advisors to Pharaoh – http://www.shemayisrael.co.il/parsha/rosenzweig/archives/behaloscha59.htm

  10. eCAHNomics says:

    Breaking: Harry Reid’s wife & adult daughter were in a serious auto accident. According to msnbc, adult daughter has been released from hospital, but wife broke back among other dire injuries but can feel her extremities.

  11. Mary says:

    At one point I’d have said HOlder could/should show up and answer questions with both guns blazing.

    He could say that he very proudly took the position that the Executive Branch does not have power over the Legislative Branch, the Judicial Branch, and the Constitution, but rather that the full range of checks and balances should be respected as that is the way our nation is best protected. He could/should say that the fruits of horribly violating those checks was that a man who did have some ties to a training camp where some al-Qaeda members also trained was held for years unconstitutionally while another man was shipped off for toture by genital mutiliation, all because of a wild paranoia that visiting a spoof website that gave satirical ‘advice’ on how to make a nuclear weapon by spinning a bucket over your head – was a threat to national security and to this nation so grave that it required the Courts, the Department of Justice and Congress to cower in fear.

    He could/should say that he is very unashamed that he was willing to file a brief supporting the powers of the Judiciary and of Congress and that it is a sad day when Congress is so terrified of bucket swinging that it chooses to forswear it’s rights and duties regarding torture and legislation in favor of a hand wringing deference to an all powerful Executive branch, one that can shoot down missionary planes with American infants and that can ship innocent Canadians off for torture in a Syrian prison and can ship a paramilitary camp trainer off to Egypt to be buried alive and experience other torture-to-order until he confesses to the disinformation on al-Qaeda/Hussein ties that help set the stage for a war on false premises – and that can later disappear that man without courts or congress ever having access to him.

    He could/should have been able to go toe to toe with any of the Republican Senators and tell them that he is and was willing to defend Congress and the Courts, even when the REpublican members of Congress were willing to do neither.

    Except, by now he has made so many and such facillating statements and taking so many and such opposing positions and publically stated that he’ll just go along with anything Obama does – he has no credible toehold for any of that.

    All he can do is either show up as a wheel spinner out of fight, or as an obsequious, Uriah Heepish, Bradbury Reinvented.

    I’d like to feel sorry for him, but I don’t.

    The rest of you can laugh quietly – but I’m going to pray on that – I am having way too hard a time feeling sorry for any of these guys lately. I don’t like being so hard, but it’s a reaction to how out of hand things have gotten and how decietful and craven the “change” message was and continues to be.

    In any event, and way epu’d, I did find,kinda sorta, the Fitzgerald info I had been looking for in EW’s Margolis thread.


    but the link – originally from Mad Dog, doesn’t work anymore so there whole doc isn’t available, just my quotes from it.

    • fatster says:

      Mary, I tried to find the Fitzgerald document in the Way Back Machine, but to no avail. Glad to see that qweryous is trying, since there’s a much higher possibility of success than from my usual bumbling around in cyberspace.

  12. flounder says:

    Maybe Holder should bring Kyl’s bullshit amicus brief from Hamdan v. Rumsfeld to the hearing and wave it in his face.

  13. Bluetoe2 says:

    This is just a taste of what the Republicans have in store if they regain control of Congress. Think they’ll want to be bipartisan? They roll up their sleeves and pummel the Dimocrats till they crawl into a corner whimpering.

    • banderson2 says:

      Your observation is right on. The Obama administration came in talking about we are not going to look backwards we are going to go forward. Well the Republicans could care less because they know that the American public has the attention span of a 10 year old. They are going to get back in power, probably during this mid-term and it will be the democrats fault particularily this administration. As Bernie Sanders stated today Obama was too busy chasing Republican votes rather than taking care of the people who helped put him in office and now all the democrats are going to reap the disbenefits from those actions or inactions.

  14. qweryous says:

    In reply to Mary @26

    The link you refer to in your comment(which refers back to the May 11 2008 EW thread(“Politicizing Show Trials at the Same Time as Politicizing DOJ and the link at comment MadDog @70)) shows as:

    And was labeled in the comment as:
    “USA Patrick Fitzgerald’s Responses to Questions for the Record of the Hearing on 2/26/08″

    I tried wayback with no result- then I remembered that name was probably spelled Benczkowski.

    As in Brian A Benczkowski :” Attorney General Michael B. Mukasey announced today that he will appoint Brian A. Benczkowski to serve as his Chief of Staff, effective August 15, 2008. Benczkowski, 38, currently serves as chief of staff to Deputy Attorney General Mark Filip.” This and other Benczkowski details at Link:

    Also Mr. Benczkowski who signed a letter to Senator Ron Wyden dated Sept 27, 2007 Answering questions concerning Executive Order 13440 and questions concerning Geneva Convention common article 3. LINK to letter:


    The link was found at Benczkowski’s profile at History Commons LINK: http://www.historycommons.org/entity.jsp?entity=brian_a__benczkowski_1

    After the new administration took over Mr. Benczkowski found new employment: Republican staff director on the Senate Judiciary Committee.
    Politico had a story headlined: “Brian Benczkowski is GOP’s go-to guy for Sotomayor hearings”. LINK:

    Not to worry as the following excerpt seems to indicate, it is all smooth in a bipartisam sort of way:

    “Although some on the left came to view Benczkowski as a Bush-era Justice Department boogeyman — a professional obstructionist for former Attorney General Michael Mukasey — Democratic staffers praise him.
    Benczkowski’s reputation with Democrats, in contrast to some other recently hired Republican staffers on Judiciary, is that he’s reasonable, fair and effective. ”

    Further searching will occur.

    • fatster says:

      You win all the prizes! That’s grand–and I knew you’d do it. You’re sumpthin’ else!

    • Mary says:


      I’m the lowest of low and non-techie, but dang this was hard to find. I don’t remember it being so hard to find before. I had to spend time figuring out how to do a EW limited site search on google (which I know someone has told me how to do before, but I search and forget unless its for work where I need to be organized and make files) Then I had to go through all kinds of searches with key words that should have pulled it up, but didn’t – don’t know why they wouldn’t work. Then I started going further afield and linking words I thought I’d probably have also used (like references to courts and Fitzgerald – yeah, that really limits youre responses a lot *g*) and sift through a lot to find the old comments, much less the now -nonworking link.

      I can’t believe you remembered the name spelling and spottedd that issue and were able to track down the new link (bc I’m pretty sure the old link worked at the time – I’m almost positive I just pulled the doc up from MD’s link and my quotes came from reading off his link)

      Thats a combo of super sleuthing and a super problem solving. And the info on Bri – who is now working steadfastly for the crew going after Holder – is pretty interesting too. What a guy.

      • qweryous says:

        And to fatster at 43:

        Glad to help.
        Knowing that Mary wanted to read it, and based on the excerpt and the threads involving it (not to mention the writers and the subject)that got my attention- I wanted to read it too.

        It was an interesting little search.

        I found another broken link to Fitzgerald’s response at the US House:Committee on the Judiciary “Majority Staff Report and Additional Letters” which is at:

        So the links are:

        MadDog’s link (not working):

        Link at the Jud.Comm. site (not working):

        The link that works now:

        Mr. B. – maybe he will be the subject of a diary.

        • Mary says:

          I think that would be an interesting diary.

          BTW – with everyone involved in torture offering up dictionary defintions, you’d think that Brian would have at least offered up the dictionary definition of “humane” in his response letter on Geneva. ;)

          • qweryous says:

            What I am not sure of is the role that Mr. B. played in, for example, passing/submitting Fitzgerald’s answers to the Judiciary Committee.

            Does the submitter vouch/bear responsibility for what they submit over their signature on these DOJ documents where the submitter is not the actual preparer?

            Also the nature of the Fitz response may be a special case? (any editing by Mr. B. or others? any review?-well I can answer the second!).

            The previous commentary also going to the apparent regurgitation of the torture talking points in that response letter. Some of that content was familiar.

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