Eric Holder Addresses the Constitution Project

I happened to get lost, end up in DC, and show up to cover the Constitution Project’s annual dinner, particularly Attorney General Eric Holder’s keynote (see here for the [!]Breaking [!]News on that front).

Before I get into that, I just wanted to note how gratifying it is to be in a crowd of DC folks who fight for things like defendant rights and rule of law. The two awardees were George Kendall and Thomas Pickering (Alberto Mora introduced Pickering).

As Dahlia Lithwick said in her Emcee gab, these folks are the heros.

Here’s my liveblog of his talk. It sure felt like Holder’s apologia for military commissions to a bunch of civil libertarians. When you come before a bunch of people who believe in civilian trials and spend most of your time trying to push the benefits of both civilian trials and military commissions, it does not bode well.

After thanking the Constitution Project for its support of expanding access to legal services, Holder addresses his testimony before the Senate Judiciary Committee. [here’s his testimony]

Protecting America’s safety, America’s interests, and America’s values by adhering to the rule of law.  We are a nation at war. Go to bed each night thinking about how best to keep our people safe. I am determined to win this war. I know we can. We won’t win by adhering to a rigid ideology or a narrow approach. But we are also a nation that lives under rule of law. Just as on the battlefield, our government must use all the tools we can to win the war.

Scoffs at those who say Obama Administration has continued policy of Bush Admin.

Calls military commissions and civilian trials “weapons against those who choose to do us harm.”

Differences between the two fora.

Proposal by some to do away with civilian courts, not realistic. Without civilian authority, we would lose one of our key weapons, It would deny us means to punish guilty, and it would be disservice to history of civilian justice system. No question that if such a plan advances it would harm our national security.

Just look at what civilian courts have achieved.

Intelligence Undie bomber has provided has been actionable.

Names the successes:

  • Najibullah Zazi
  • Undie Bomber
  • David Headley
  • Aafia Siddiqui

In some cases, military commissions appropriate. Congress has taken extraordinary steps to improve commissions since they were first introduced. MCs reflect realities of battlefield. I have faith in our MCs, which is why I have referred 6 cases. There is no inherent contradiction between referring cases while at the same time prosecuting terrorists in civilian courts.

Commissions only have jurisdiction over AQ and affiliated groups. Not Hamas, not FARC. Not against Americans. MCs can only prosecute some violations of rules of law. Civilian prosecutors can also make other charges: firearms, false statements. Terrorism plots can be disrupted, while still collecting information. Civilian courts can provide just punishment for variety of bad acts.

Our civilian courts have 200 years of precedence. They have a reliability that gives them credibility.

Describes preference of allies to cooperate with civilian trials, says he hopes that as MCs get a better reputation, allies will cooperate on MCs too.

Debate has meant to scare rather than educate.

Holder picks up his defense of prosecutors who serve honorably. They deserve our gratitude and our respect.

52 replies
  1. JasonLeopold says:

    If you didn’t see it yet:

    C.I.A. Leader Backed Destroying Tapes in ’05

    WASHINGTON — Porter J. Goss, the former director of the Central Intelligence Agency, in 2005 approved of the decision by one of his top aides to destroy dozens of videotapes documenting the brutal interrogation of two detainees, according to internal C.I.A. documents released Thursday.

    …..t was previously known that Mr. Goss had been told by his aides in November 2005 that the tapes had been destroyed. But the documents released Thursday provide the most detailed glimpse yet of the deliberations inside the C.I.A surrounding the destroyed tapes, and of the concern among officials at the spy agency that the decision might put the C.I.A. in legal jeopardy.

    • MadDog says:

      Jiminy crickets! I really wish the NYT (and all the other MSM miscreants) would come down from their friggin’ high horses and provide links to the actual source material.

      There’s nothing (yet) over at the ACLU, but I’d guess that some on the ACLU’s BFF mailing list might have already gotten a heads-up.

      • Jim White says:

        Those will be interesting reading when we get them.

        In the meantime, I’ve done a little browsing through documents you linked on the previous thread on the ACLU Bagram FOIA case. From page 32 of 39 in the “Government Reply Memo” (pdf), we have this nugget:

        ¶ 10. Under a mosaic theory, a “[c]ompilation[] of items of information” — even if the individual items in the compilation are not themselves classified — “may be classified if the compiled information reveals an additional association or relationship that: (1) meets the standards for classification . . . ; and (2) is not otherwise revealed in the individual items of information.” Exec. Order 12,958, § 1.7(e). Thus, even if the Court were to conclude that one or more of the columns of information about the detainees discussed above were not properly classified on its own, DoD has further justified the classification of that information as part of a classified compilation, or mosaic, of information.

        Nice. In order to continue trying to cover up their widespread detention of innocent civilians so that they could construct a mosaic of information about what was going on, they invoke the defense that they can’t describe where, when and under what conditions they detained prisoners because….the enemy could construct a mosaic of what they were doing.


        • MadDog says:

          I still can’t believe that both the DOJ’s (39 page PDF) and CIA’s (10 page PDF) responses continue with their lame insistence that the CIA can neither confirm or deny that they ship folks to Bagram, nor that they interrogate folks at Bagram because…wait for it…al Qaeda and the Taliban might figure out that the CIA does this.

          It would be laughable hearing this from a two-year old, but not so much from our supposedly grownup government.

            • PJEvans says:

              I’m shocked, shocked, that there’s gambling going on here.

              Do they really, seriously, think that the Taliban and Al Qaeda are that stupid? After eight effing years of this?

              If they really think that, then they’re too stupid to be doing that (or any other) job that requires more sense than a two-year-old.

              • timbo says:

                They’re not hiding this from either terrorist organization, they’re hiding it because of the illegality of the programs in question.

              • fatster says:

                I dreamed last night that they resorted to this because it was the last excuse they had. If only!

        • MadDog says:

          I’m guessing you’ll want to take a gander at this Los Angeles Times piece as you continue your fine Seminal diary work:

          New rules on terror custody being drafted

          The Obama administration is for the first time drafting classified guidelines to help the government determine whether newly captured terrorism suspects will be prosecuted or held indefinitely without trial, senior U.S. officials said.

          The draft document envisions that a small number of suspected terrorists captured in the future could be detained and interrogated in an overseas prison, several of the officials said. At least in the short term, Bagram air base in Afghanistan would be the most likely prison to hold the suspects, they said.

          But approval of the guidelines is being delayed, primarily by State Department officials who are concerned that formalizing the rules will lead inevitably to greater use of long-term detention by the administration under conditions similar to those at the Guantanamo Bay prison in Cuba, which President Obama has pledged to close…

          • bobschacht says:

            New rules on terror custody being drafted

            The Obama administration is for the first time drafting classified guidelines to help the government determine whether newly captured terrorism suspects will be prosecuted or held indefinitely without trial, senior U.S. officials said….

            It shivers me timbers that OUR DOJ can talk in such blase fashion about holding people indefinitely without trial as if it were an entirely normal thing to do. Where are the howls of protest? We have sunk so far…

            Bob in AZ

      • MadDog says:

        What do you make (or not) of this from the NYT article:

        …Mr. Goss and other former C.I.A. officers have testified before a grand jury hearing evidence as part of the investigation, former intelligence officials said…

        As far as I know, this is the first instance where a sitting Grand Jury has been mentioned.

  2. Jeff Kaye says:

    I like the Constitution Project, I like Alberto Mora, I like George Kendall… but Thomas Pickering!? Please…

    Memories are so short… this from Democracy Now! in 1998:

    In one of the most startling developments in the case of four church women murdered in El Salvador in 1980, newly declassified State Department documents have revealed that in 1985, then US Ambassador to El Salvador, Thomas Pickering, was told by the Salvadoran Defense Minister that he suspected high ranking military officials had ordered the murders of the three nuns and a lay worker. This at a time when the U.S. government was asserting that no high ranking officers were involved in the slayings. Even after Pickering’s conversation with the Defense Minister, the U.S. continued to deny any high level involvement.

    More here

    Pickering has also been a major diplomatic figure in the stepped up intervention in Columbia, going back to the Albright-Clinton years.

  3. MadDog says:

    …Debate has meant to scare rather than educate…

    This sure smells like the “help” Rahm and the White House offered to the supposed politically naive Holder.

    Shorter Rahmbo: “You don’t have to believe. Simply saying it will make it so. Believe me!”

  4. fatster says:

    Thanks so much for covering Holder’s appearance at the Constitution Project’s dinner, EW. I guess I’m impossibly ignorant and dense, but I didn’t realize trials were supposed to be weapons. I thought they were deeply based in our legal traditions, leading to appropriate action against those who cause harm. Trials surely have been used as weapons (Chicago Seven comes to my old mind), but I always thought that was shameful. I guess we’re entering the Era without Shame in terms of these matters.

    I figure Holder was lucky to have run into Attackerman and not yrself. Now, that I would really like to have witnessed.

  5. JasonLeopold says:

    By the way, regarding Holder, did anyone catch this from the WaPo story regarding his appearance before the Senate Judiciary Committee? This sounds like Rahm. Not sure who the other officials are.

    Senior administration officials have privately expressed dismay about Holder’s job performance, saying he has displayed a tin ear in his decision-making and his public remarks. That has prompted predictions that he might not last much longer, but Holder has shown no signs of getting ready to leave, and he remains a close friend of President Obama’s, advisers said. If anything, his careful statements Wednesday seemed to suggest that he is adapting to the White House’s desire that he make less news


    • fatster says:

      It’s about cosmetics, isn’t it? Maintain a certain appearance and behavior, and you’re part of the in-crowd. Reminds me of young teens, who run around together in one big support group.

    • tejanarusa says:

      Jeez, it isn’t Holder who has the “tin ear.” Does Rahm have any idea how much his “pragmatism” is loathed by real Democrats?
      Yeah, I know, short answer: he doesn’t give a —- anyway.

      Thanks for the report. Disappointing, especially after the Senate hearing, which (what I heard of it) was somewhat encouraging.

    • earlofhuntingdon says:

      Who would Rahm prefer at DoJ instead of Holder? Would he bring back Goodling, Sampson and ‘Fredo? Or would he give us Cass Sunstein, imitating Ashcroft by covering Justice’s naked statues while he covers the executive branch’s continuing grab for naked power?

  6. earlofhuntingdon says:

    Rahm complaining that Holder has a tin ear is like the Vogons complaining about Robert Frost’s poetry.

  7. JasonLeopold says:

    OK. Still no docs from the ACLU. But here’s some more from the WaPo and one of the reasons why Dusty Foggo has been speaking to Durham (although I think it’s for other reasons than what’s presented here):

    A day after the destruction, Kyle “Dusty” Foggo, then the executive director of the CIA, was told that “we may have ‘improperly’ destroyed something,” according to an e-mail. The message was written by Foggo’s deputy, who remains undercover, according to a former intelligence official.

    “There may have been some people who thought precise procedure wasn’t followed, but I haven’t heard of anyone who believed at the time that any law had been broken,” said a U.S. official familiar with the matter, speaking on the condition of anonymity to discuss the subject of an ongoing investigation. “That’s quite a different thing.”

    • JasonLeopold says:

      “There may have been some people who thought precise procedure wasn’t followed, but I haven’t heard of anyone who believed at the time that any law had been broken,” said a U.S. official familiar with the matter, speaking on the condition of anonymity to discuss the subject of an ongoing investigation. “That’s quite a different thing.


  8. Loo Hoo. says:


    He just didn’t have much of an argument to make. And he was making it to the wrong crowd.

    The Constitution Project, meeting for its annual dinner at the Mayflower Hotel, is a group of devoted defenders of the Constitution — the kind of folks who ardently defend basic rights no matter how popular or unpopular, and regardless of politics.

    • b2020 says:

      “Attorney General Eric Holder, whose decision to try 9/11 terror suspects in criminal court appears likely to be overruled by the White House political staff…”

      I know this is HuffPost, but it is Froomkin….

      Can somebody enlighten my just how anybody in the executive, let alone “political staff”, can “overrule” the US AG on decisions such as whom to investigate, when to prosecute, and which venue to choose for the trial?

      For a year now we have witnessed the spectable of POTUS and USAG colluding in what to me is a crass violation of the “independence” of the DOJ and the USAG in particular. This started with the “pre-emptive amnesty” speech Obama gave at CIA HQ, and has been unfolding in all its splendor on the KSM trial venue issue. Holder does not seem to be any more concerned than anybody else. Am I missing something about the USAG office and USDOJ privileges and responsibilities?

      My understanding is Obama does not get to decide these issues, and his handpicked political stooges do not get to decide either, except for the stooge that happens to be the USAG. Holder swore an oath to defend constitution and to uphold the law, not to act out POTUS decisions. Against these responsibilities, Holder seems as derelict as AG AGonzo when it comes to professional ethics, but much more damaging to the nation. Either Holder is a sock-puppet that has Obama’s leaden fist so far up his arse he can kiss the velvet glove without anybody noticing, or he is an independent actor, despicable in his own right. Either way, there is nothing redeeming about his conduct.

      In my view, both Obama and Holder have violated their oath of office repeatedly on this – focused on defending past and present executive wrongdoing against “litigation and legislation”, looking forward and backward to prosecute whistleblowers while burying people like Siegelman and suffocating justice with the shroud of state secrets – and that is just domestic, felonies committed by and against US citizens within the US.

      If rotten, hollow men such as these had been in charge following Watergate, I would expect to see Nixon awarded a third term, and Calley would probably make general before Colin Powell.

  9. earlofhuntingdon says:

    Holding this meeting at the Mayflower is like making a religious pilgrimage to Vegas. It’s one block from Lobbyist Central on K Street; both frequently host the priciest members of the world’s second oldest profession.

  10. JasonLeopold says:

    I know I have said it before, but I have to say it again. This was Eric Holder back in 2008 where he was the keynote speaker at another event for a “constitution” related organization.

    “Our government authorized the use of torture, approved of secret electronic surveillance of American citizens, secretly detained American citizens without due process of law, denied the Writ of Habeus Corpus to hundreds of accused enemy combatants, and authorized the use of procedures that both violate international law and the United States Constitution. We owe the American people a reckoning.”

  11. timbo says:

    The fact that Durham’s investigation is looking under at least some of the right rocks is encouraging…a tad late for the sanity of many of the people involved or affected but, hey, it is continuing…

  12. JasonLeopold says:

    I don’t recall ever seeing this reported anywhere. Does anyone remember if this had been reported before? This from an AP story on the latest regarding the torture tapes:

    The videos showed that interrogators did not follow the waterboarding procedures authorized by President George W. Bush’s administration, the documents show.

    I assume “documents” refers to these latest documents that were released.

  13. cinnamonape says:

    Wow! What a mess.

    “Jose Rodriguez…worried the 92 tapes would be “devastating” to the CIA if they ever surfaced…approved the destruction of the tapes.

    Rodriguez told Goss AND OTHERS he “felt it was extremely important to destroy the tapes and that if there was any heat, he would take it,” according to a November 2005 e-mail. Goss laughed, according to the e-mail, and said he’d be the one to take the heat. “PG, however, agreed with the decision.”

    It appears that this is a memo of a meeting by an attendee other than Goss or Rodriguez.

    “The author’s name is blacked out. Intelligence officials have always asserted Goss did not approve of the destruction, and was angry to find out about it. However, Rodriguez’s lawyer has disputed that and this email suggests that Rodriguez may have been correct.

    The e-mails show Harriet Miers, and her CIA counterpart, John Rizzo, only learned the tapes were destroyed two days afterwards and were both angry.

    “Rizzo is clearly upset because he was on the hook to notify Harriet Miers of the status of the tapes because it was she who had asked to be advised before any action was taken,” reads a November 2005 e-mail from an unidentified CIA officer to the agency’s No. 3 official, Kyle “Dusty” Foggo. “Apparently, Rizzo called Harriet this afternoon and she was livid.”

  14. Loo Hoo. says:

    Baltasar Garzon fights on.

    THE irony will be lost on few Spaniards. On April 14th a writ was presented to a court in Buenos Aires asking it to investigate crimes against humanity and genocide committed in Franco’s Spain. The writ mirrors those that Baltasar Garzón, a crusading Spanish magistrate, once used to investigate atrocities committed under Argentina’s juntas and Chile’s dictator, General Pinochet. In both cases the complainants said amnesty laws blocked any possibility of local trials. Mr Garzón’s investigations provoked the arrest of General Pinochet in London and the trial and conviction of an Argentine navy captain in Madrid.

  15. alinaustex says:

    [email protected]
    My belief is that Holder still wants accountabilty -and there is a lot more going on then just the in-fighting with Rahm . Now if Porter Goss & the Gosslings have been implicated in the illegal destruction of the CIA torture memo this only reinforces my belief .
    I also still have hope and a high expectation that the Durham effort will hold wrong doers accountable .
    And I also still beleve that KSM will be tried on Governor’s Island per Col Lang’s suggestion.

  16. Jeff Kaye says:

    Did anyone ask Holder why DoJ “defaulted in response to letters rogatory seeking clarification of issues surrounding the incidents of torture in which the Justice Department itself was directly involved”?

    See Scott Horton’s coverage, or my mention, in relation to legal reprisals being made against Spanish Judge Garzon.

    • bmaz says:

      That is a no brainer; DOJ did not want to undertake any act which could be construed as recognizing or accepting the jurisdiction of the Spanish Court and, quite frankly, I don’t blame them on that.

        • bmaz says:

          Why not?? Because it is an infringement upon the sovereignty of the US and permits too many countries, with too many justice systems with unknown or questionable stability and due process, in a position to attach and prosecute US citizens; that is why. The entire legal world does not singularly revolve around these particular cases. If the US wants to participate in UN justice functions, it can and has agreed to do so based upon written treaties and charters formally agreed to and binding the process. It could choose to do so with respect to the ICC (International Criminal Court) as well, but has not to date. That is fine; howver blithely accepting the right of any country to prosecute and convict US citizens on crimes not having sufficient locus to that country is an absolutely horrid idea and would lead to all kinds of problems.

    • bmaz says:

      Jeff, that is not really correct at all; irrespective of how the cited journal article described it, the US anti-torture is not necessarily a true universal jurisdiction provision, and Taylor was attached because he was a US citizen and the claimed jurisdiction for charging him and trying him in an US Article III court was stated in the complaint and by the court to flow from his citizenship.

  17. thatvisionthing says:

    Crossposting a comment I just left on Jim White’s Seminal diary. Marcy, Jason, bmaz, everybody, please be aware of this and listen to what Jesse Trentadue has to say about Eric Holder covering up Oklahoma City bombing info from the courts and from Congress when he was in the Clinton DOJ, over on antiwar This just screams out to be noticed, especially now. My comment:

    Eric Holder needs to be challenged on his qualifications to be the decider of terrorism trials and Congressional oversight of terrorism. This is a scandal. I’ve been listening to antiwar radio (the Austin TX Scott Horton, not the Harper’s Scott Horton) podcasts yesterday while I was doing my taxes. While I was listening, particularly to Jesse Trentadue’s interviews, I kept wishing that EW and bmaz and WO and Mary and Mad Dog and Jane and Jeff Kaye and Jason Leopold and you and just everyone on fdl who seems to have inside knowledge about the workings of the justice department would be listening too. Because Utah lawyer Jesse Trentadue has been FOIA’ing and litigating for years to get information about government involvement with the Oklahoma City bombing. His brother Kenney was killed, apparently by FBI interrogators, certainly in federal custody, because the FBI mistook Kenney for John Doe No. 2. They called it a suicide but the body shows someone who has been beaten and garroted. 1995. Then the guy he was apparently mistaken for “commits suicide” the same way, hanging in federal prison, the day before he is to give an interview with the LA Times that would “break the Oklahoma City bombing wide apart” (per my memory). And a witness in prison also “commits suicide” by hanging. (Does the government have a goon squad?) And among the FOIA responses Jesse Trentadue has gotten are DOJ e-mails from the Clinton years when Eric Holder was [an assistant attorney general?] — and it was Eric Holder’s job to squash any mention/investigation/hearings about Kenney Trentadue and Oklahoma City. Holder called it “The Trentadue Mission,” if I’m remembering correctly, and made jokes like trenta-do trenta-don’t. Were there ever any congressional hearings on Oklahoma City? And I believe Timothy McVeigh’s and Terry Nichols’ trials excluded any mention of accomplice John Doe No. 2, though I certainly remember seeing his composite drawing all over the news in the days following the bombing. And an ATF agent’s testimony, that her Elohim City informant had shown her the building she(the informant) had been part of a party casing four months prior to the bombing–the Murrah building, was sealed by the court and excluded. The latest batch of FOIA responses that Jesse Trentadue got, which was the subject of his most recent interview this month, was re the CIA. His lawsuit was denied because of “state secrets” — the first time he’s hit that wall, and the responses he got were all blacked out. But he says it turns out the CIA was all over the DOJ’s case-building for McVeigh. The CIA was involved pre bombing. The Southern Poverty Law Center was involved. The ATF was involved. The FBI was involved. The German government was involved in some way, that’s the CIA connection. They all had informants, they all knew. It was an operation (a sting?) called PatCon, patriot conspiracy. And remember that Oklahoma City videotape that got released recently, with the minutes missing where the bomb went off? That edited tape was released because Jesse Trentadue FOIA’d it. Scott Horton has old news broadcasts where people describe what was on an original video that they saw before the FBI disappeared it, and it showed two people in the Rider truck, showed that McVeigh got out and walked away first, and then the second man got out, John Doe No. 2, and it was apparently HE who set the bomb off. He was certainly in the picture. And it seems very possible that he was a government informer. And it was Eric Holder’s job to quash all that information.

    So, Eric, tell us about your qualifications.

    When Trentadue got his first big batch of FOIA responses, he said all the big news media wanted it, CBS, ABC, yet none of them ran stories on it–“it was too ugly.” Apparently the only big media that has covered it has been the BBC. And Terry Nichols offered to tell AG John Ashcroft everything he knew about the Oklahoma City bombing, including FBI informants, and instead Ashcroft sealed Nichols off from any press. Where is Glenn Greenwald on this? He’s been a guest on antiwar radio. And Rachel Maddow with her upcoming special doesn’t even seem to be aware of Jesse Trentadue, all her coverage is about crazy militias, and Scott Horton resents that, resents her presenting the Southern Poverty Law Center as experts when in fact (apparently) the SPLC was the FBI contractee to infiltrate Elohim City and much of the FBI/CIA lying and court evidence quashing is to protect the informants and their own involvement. They KNEW.

    Heck, I’m in pajamas and I’m out of cheetos. Anybody, anybody, anybody?

    The end of the interview:

    SCOTT HORTON: You still don’t know who killed your brother, do you?

    JESSE TRENTADUE: No, no I don’t. But I think I’m closer now than I’ve ever been. This ruling puts this out there too. People are not paying attention to this, but this judge made it clear that there was a foreign element involved in that attack, and one the government has worked pretty hard to keep secret.

    SCOTT HORTON: Well I noticed, well I guess you sent me this, Homeland Security Today, HS Today dot US, I guess, you know this is basically read by cops throughout our country: “CIA aided DOJ prosecutors in 1995 Oklahoma bombing case. Secret CIA documents withheld in FOIA suit raise more questions than they answer,” is this headline, so let’s, come on Washington Post and Associated Press, yeah, right, let’s see. We’ll wait and see.

    JESSE TRENTADUE: Don’t hold your breath.”

    CIA Aided DOJ Prosecutors in 1995 OKC Bombing Case
    by Anthony L. Kimery
    Tuesday, 30 March 2010

    ‘Secret’ CIA documents withheld in FOIA suit raise more questions than they answer

    Questions about foreign complicity in the 1995 bombing of the Alfred P. Murrah federal building in downtown Oklahoma City for which Timothy McVeigh and Terry Nichols were convicted, were disclosed Friday in a ruling by US District court judge Clark Waddoups on a Freedom of Information Act (FOIA) lawsuit against the CIA for the CIA’s refusal to completely declassify records it has acknowledged it possesses that pertain to the case.

    FOIAs Reveal More on CIA Assist to OKC Bombing Probe
    by Anthony L. Kimery
    Thursday, 01 April 2010

    ‘CIA provided pre- and post-blast imagery to facilitate forensic examination’


  18. cheneywatchorg says:

    ABC News did link to 2 emails with explanation. We have to get used to the fact that “emptywheel” and others Kick Ass, and that without her work, and other rogue journalists, we’d know nothing. I am deeply appreciative of their efforts. (not to mention the detailed examination and analysis they provide)

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