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Holder on State Secrets

The Senate debate on Eric Holder’s nomination is on CSPAN2 right now. Tom Coburn is on the floor now pretending that Holder is going to bring back the Fairness Doctrine and take away your guns.

But Holder’s nomination is bound to pass, with large margins, when they vote this evening. So it’ll be interesting to see how Holder implements these highly parsed views, written in response to questions from Russ Feingold, courtesy of Secrecy News.

3. I’m concerned that the outgoing administration may have used the "state secrets privilege" to avoid accountability for potentially unlawful activities, including warrantless wiretapping and rendition. Courts tend to be very deferential to these privilege claims, so there’s certainly room for abuse. Will you commit to reviewing all pending cases in which DOJ has invoked the state secrets privilege to make sure the privilege was properly invoked, and withdraw any claims of privilege that are not necessary to preserve national security?

I will review significant pending cases in which DOJ has invoked the state secrets privilege, and will work with leaders in other agencies and professionals at the Department of Justice to ensure that the United States invokes the state secrets privilege only in legally appropriate situations.

4. One reason that the state secrets privilege is so vulnerable to abuse is that courts don’t always use the tools that are at their disposal to review privilege claims, such as in camera review of the privileged evidence. I cosponsored the State Secrets Protection Act (S. 2533 in the 110th Congress), with Sen. Kennedy and Sen. Specter, to require courts to engage in meaningful review of these claims. Would you support enactment of this bill?

I appreciate the Committee’s concern about potential abuses of the state secrets privilege and will work to ensure that assertions of the privilege are made only when legally and factually appropriate. I will consult with appropriate career personnel at the Department of Justice and perhaps in other agencies, before making a final judgment on whether to support this or other particular legislation.

"I will review significant pending cases." That would, presumably, include the al-Haramain case. Of course, that says only that he would review the cases.

Did Holder Promise No Prosecutions?

As I posted, both Sheldon Whitehouse and Pat Leahy suggest that–even though John Cornyn and others made an inappropriate demand that Holder promise not to prosecute any Bushies–Holder did not make that promise.

But right as that came out, the Moonie Times came out with a Kit Bond interview claiming that Holder had made such promises. (h/t Wigwam)

President Obama’s choice to run the Justice Department has assured senior Republican senators that he won’t prosecute intelligence officers or political appointees who were involved in the Bush administration’s policy of "enhanced interrogations."

Sen. Christopher "Kit" Bond, a Republican from Missouri and the vice chairman of the Senate Select Committee on Intelligence, said in an interview with The Washington Times that he will support Eric H. Holder Jr.’s nomination for Attorney General because Mr. Holder assured him privately that Mr. Obama’s Justice Department will not prosecute former Bush officials involved in the interrogations program.

Mr. Holder’s promise apparently was key to moving his nomination forward. Today, the Senate Judiciary Committee voted 17-2 to favorably recommend Holder for the post. He is likely to be confirmed by the Senate soon.

Sen. Bond also said that Mr. Holder told him in a private meeting Tuesday that he will not strip the telecommunications companies that cooperated with the National Security Agency after the Sept. 11, 2001, attacks of retroactive legal immunity from civil lawsuits–removing another potential sticking point among GOP senators.

In the interview Wednesday, Mr. Bond said, "I made it clear that trying to prosecute political leaders would generate a political firestorm the Obama administration doesn’t need."[my empahsis]

Mind you, I’m not holding my breath for any big prosecutions from the Obama Administration, given his repeated calls to move forward.

That said, I suspect Kit Bond is spinning Holder’s clear statements with regards to those who implemented Bush’s policies into statements about those who crafted Bush’s policies.

Note how Holder answered this question in written RFQs:

Mr. Holder indicated that he would not prosecute any intelligence officers who participated in the interrogation program and who had followed Justice Department guidance.

Prosecutorial and investigative judgments must depend on the facts and no one is above the law, Mr. Holder wrote. Read more

Rove's "Renewed" Privilege Assertion: Is It Absolute Immunity or Executive Privilege?

Thanks to MadDog for finding someone besides Gloria Borger discussing Bush’s recent letter reasserting his support for Rove to blow off Congress.

It’s unclear, from the reporting, whether the letter reasserts absolute immunity or asserts, for the first time, old-fashioned executive privilege regarding the information Conyers subpoenaed Rove to testify about. The WSJ speaks clearly in terms of "renewed assertion," suggesting Bush is making the same argument that he did earlier for Rove, that presidential aides can simply blow off Congressional subpoenas pertaining to their official duties. 

Robert Luskin, Mr. Rove’s attorney, said Mr. Rove recently received a renewed privilege assertion from President Bush, before the president left office. Mr. Luskin said he would consult with Mr. Obama’s White House counsel to determine the Obama administration’s stance.

But in an interview with the WaPo, Luskin clearly discusses executive privilege.

Robert D. Luskin, an attorney for Rove, said his client will "abide by a final decision from the courts." Luskin noted that Bush, in a letter to Rove, recently reasserted executive privilege.

"It’s generally agreed that former presidents retain executive privilege as to matters occurring during their term," Luskin said. "We’ll solicit the views of the new White House counsel and, if there is a disagreement, assume that the matter will be resolved among the courts, the president and the former president."

I wouldn’t make too much of that, though, because Luskin has very consistently tried to normalize the radical assertion of absolute immunity Rove relied on last year by talking in more general terms of privilege.

So thus far, we know Rove has a new piece of paper, but we don’t know what is on that paper.

And that could make all the difference between whether we get Rove testimony within hours of Holder taking over at DOJ, or whether Rove’s testimony gets litigated for some time going forward. Here’s why (for background read this post and this post). What follows is my NAL description–those of you with real credentials here, feel free to correct me where I screw this up.

Executive privilege is a constitutionally recognized privilege for the President to shield certain topics from the scrutiny of the other branches, the idea being that Courts or Congress should not be able to snoop into the Executive’s doings in matters that they have no constitutionally recognized business snooping in. Read more

al-Haramain: the Dead-Enders Misrepresent Their Appeal to Dismiss the Need to Wait for Obama

al-Haramain’s lawyer, like me, has some doubt whether or not the motion for appeal submitted on Monday and reaffirmed under Obama’s name on Thursday reflects the thinking of the Obama Administration.

Jon Eisenberg, the attorney for the two lawyers, suggested the litigation be put on hold to give the new Obama administration time to reconsider the legal posture it inherited from Bush.

"None of us knows whether or not they might take a different approach to this case," Eisenberg argued to Walker.

Neither [Anthony] Coppolino nor [Vaughn] Walker responded to that point.

And I’m guessing since Coppolino, who is purportedly speaking for the Obama Administration, didn’t immediately answer that question, he has some doubt, too. 

I suspect Walker has some doubt, too, as he has asked for more briefing, which will have the effect of delaying his response until such time as Eric Holder and Dawn Johnsen and David Kris have had time to fully review the documents behind the case and actually be read into this program.

On Friday, Walker instructed the government and Eisenberg to provide further written arguments within weeks about why he should or should not permit the government to appeal a case brought by two former lawyers for the Al-Haramain Islamic Foundation.

And well he should demand more briefing. Because the dead-enders make a claim in the only document with Obama’s name on it–the case management statement initially submitted with Bush’s name on it and then re-submitted with Obama’s name on it–that completely misrepresents the scope and nature of their appeal.

The Dead-Enders Argue They’re Not Making a Unitary Executive Argument

In its own case statement, al-Haramain cites Eric Holder’s call for "a reckoning" for Bush having illegally authorized warrantless wiretap, and then cites Dawn Johnsen arguing that the "unitary executive" theory threatens "balance of powers and individual rights." Then, al-Haramain argues that these statements suggest the Obama Administration will adopt a different course with this case.

It would be a remarkable turnabout for the new Department of Justice, under the guidance of Mr. Holder and Ms. Johnsen, to refuse any declassification here and continue the effort to resist a decision on plaintiff’s standing and this Court’s ajudication of the Bush administration’s "unitary executive" and Commander-in-Chief" theiries.

Read more

The "Obama" Support for Stay Pending Appeal in al-Haramain

A number of you have emailed to ask about this report–that Obama has supported Bush’s request for a stay pending appeal in the al-Haramain case.

The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants.

In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor. With just hours left in office, President George W. Bush late Monday asked U.S. District Judge Vaughn Walker to stay enforcement of an important Jan. 5 ruling admitting key evidence into the case.

Thursday’s filing by the Obama administration marked the first time it officially lodged a court document in the lawsuit asking the courts to rule on the constitutionality of the Bush administration’s warrantless-eavesdropping program. The former president approved the wiretaps in the aftermath of the Sept. 11, 2001, terror attacks.

"The Government’s position remains that this case should be stayed," the Obama administration wrote (.pdf) in a filing that for the first time made clear the new president was on board with the Bush administration’s reasoning in this case.

On its face, this looks like really horrible news–a spineless attempt on Obama’s part to play along with Bush’s efforts to run out the clock on Bush’s alleged crimes in wiretapping al-Haramain and other Americans. And frankly, this should not be surprising news; Eric Holder said in his confirmation hearing that–unless he finds anything unexpected–he would continue the Bush Administration’s support for retroactive immunity, a case that is also before Judge Vaughn Walker. So it would be unsurprising that the Obama Administration would be cautious in this case as well.

That said, there is some confusion about the whole decision. Here’s the timeline:

January 16: Bush files appeal

January 19: Bush motions for stay pending appeal, informs Walker and al-Haramain of what it is doing

January 20: al Haramain responds, Obama becomes President

January 21: Specter places his one-week hold on Holder’s nomination

January 22:  The "Obama Administration" submits support of Bush motion 

January 23, 10:30 AM PST: Hearing scheduled

As al-Haramain complains in its response, the Bush Administration appears to have deliberately held their appeal until "64 minutes before midnight on the last day of the Bush presidency." Read more

Holder Nomination Hearing, Part Two

picture-72.thumbnail.pngTo follow along, see CSPAN3 or the Committee Webcast (though the latter seems to be having the RealPlayer problem it was having earlier). 

Sorry. Started a little late. I think Lindsey Graham is beating up on Holder because he once worked for Blago, but that’s just a guess. [actually, not sure I got that right]

Graham: Is it fair to say that we’re at war?

Holder: No question that we are at war.

Still asking questions about whether our "war"–whether someone in the Philippines financing terrorism was part of the battlefield. 

Graham: What about someone who may not be subject to an Article III trial. Have you thought about that group?

Holder: I’ve struggled with that.

Leahy: Graham has discussed these issues with me, I’ve relied on his experience from JAG, we’ve also had some military people risking their own careers saying what should be done. They have been most instructive to members of this committee on how the UCMJ works. I would suggest that you may want to spend some time in informal discussions with people like Graham, we’ll at least let you know what our views are.

Holder: That’s a good idea. Didn’t want to talk about the substance of my conversation with Graham thinking he had thought about our military judgment a lot. 

Leahy (who keeps putting in letters of support at key times) is now putting in letters of support from Generals and whatnot. 

Cardin: I want to talk about Civil Rights Division. Resources reduced. Schloz. I want to give you an opportunity to tell me your own personal commitment, and how you will direct that division head what you expect to see during the Obama division.

Holder: Civil Rights is conscience of DOJ. 

Cardin: Bush Administration took zero cases supporting African Americans, but they were there to defend the draconian Georgia law that has been called the new poll tax. I’d like to find a way to prevent campaign tactics to be used to suppress turnout. 

Cardin: One other area shows a racial disparity in our country. Crack cocaine. African Americans now serve as much time for drug offenses as whites do for violent crimes.  We know we have disparities in our laws. It’s very clear that’s true wrt crack cocaine. I’d like a tough but fair system.

Holder: Our criminal justice system has to be fair, it has to be viewed as fair. I saw that in USA DC. I heard jurors talk about inadequacies in Read more

Eric Holder Hearing Open Thread

This should be the only really contentious one. Go to CSPAN3 or the Committee Webcast to see it.

Note, in a bit of timing jujitsu, Biden and Hillary are giving their farewell speeches on the floor of the Senate at 10 and 11, meaning CSPAN2 will be covering those speeches and not this hearing, meaning (in turn) that this hearing won’t be available to most Americans watching on teevee.

Leahy’s opening statement is a bit of a scold directed at Arlen "Scottish Haggis" Specter for his kabuki opposition to Holder.

Ah Jeebus. Specter is bitching about minority rights–complaining that, after having agreed to the schedule he originally agreed to, he then wanted to change the schedule. 

Huh. Did Specter just say that Mary Jo White refused to testify? [I may have gotten that wrong–I’m having technical difficulties with the RealPlayer streams]

John Warner: "bipartisan approach in helping President-elect face the most complicated issues that ever faced a President."

Warner: People in every corner of the country are following this hearing. [Well, they would be if two top incoming officials weren’t giving their swan-song speech on the floor of the Senate and therefore hogging the CSPAN2 time]

Note: there appears to be a RealPlayer difficulty on the feed–if you’re having problems–getting sound but not picture–try CSPAN’s Microsoft feed, which has picture for me.]

Holder’s goals:

Protect American people from terrorism. Use every available tactic, do so within the letter and the spirit of the law. America must remain a beacon to the world. 

Restore credibility of department.  DOJ will serve justice, not fleeting interests of any political party. Filip and Mukasey deserve gratitude of American people for doing much. (?)

Embrace historic role in fighting crime, protecting civil right, protecting environment, ending fraud. [Talks about accountability in finance.]

Leahy starts with waterboarding. "Two most recent nominees to serve as AG hedged on waterboarding. Do you agree with me that waterboarding is illegal?"

Holder: If you look at the history, I agree with you that waterboarding is torture.

Holder: no one above law. President has obligation to faithfully execute laws of US. Obligations from treaties and Constitution. The President acts most forcefully when he acts in manner consistent with Congressional intents and directions. It’s my belief that President does not have power to authorize torture.

Leahy: 2nd Amendment? [Leahy sets up Holder to answer one of the questions GOP will throw at him.]

Holder: My amicus brief was with respect to decisions signed before Heller. 

Read more

Orrin Hatch to Support Holder Yet the Delay and Kabuki Continues

Understand–this report that Orrin Hatch will support Eric Holder is not news.

Sen. Orrin Hatch (Utah), who chaired the panel for a decade beginning in 1995, told The Hill that he will support Holder.

I intend to,” said Hatch.

His decision could undermine GOP efforts to stall or block the confirmation. Senate Republican Leader Mitch McConnell (Ky.) said Friday that Holder would be the only Cabinet nominee to face a tough confirmation fight.

Hatch said that Republicans should try to strike a cooperative tone with President-elect Obama during the first days of his administration.

“I start with the premise that the president deserves the benefit of the doubt. I don’t think politics should be played with the attorney general,” he said.

“I like Barack Obama and want to help him if I can.”

Hatch said he would support Holder way back in November. Which, even though the Senate Judiciary Committee is the committee most unfavorably positioned until the Senate reorganization (unlike SJC, most other committees have lost Republicans but not Democrats, giving us a bigger majority than we had last Congress), still means Holder’s nomination will pass the committee and the full Senate, even if by a one vote margin.

Now, maybe Arlen "Scottish Haggis" Specter will dig up something during Holder’s nomination hearing that will pick off Democratic support; but seeing as how he’s more interested in Elian Gonzales and less interested in Chiquita, I don’t see that happening.

Which means the drama surrounding the Holder nomination from the right is–and has always been–kabuki. 

Kabuki, an attempt to dredge up Republican greatest hits on Clinton, and–I suggest again–delay.

There are a number of reasons why they’d want to delay Holder’s confirmation and not–say–that of Hilda Solis, who will champion the EFCA legislation that will be an early focus in Congress. You see, EFCA will pass or fail regardless of whether Solis has been approved or not. EFCA’s passage comes down to the actions of a few conservative Dems and a few moderate Republicans. Republicans oppose EFCA, but they’re not going to delay or defeat it by delaying Solis’ confirmation.

But there are things that Republicans can delay or prevent by delaying Holder’s confirmation, first and foremost, any legal prosecution of George Bush for reauthorizing warrantless wiretaps over the objections of the acting Attorney General. Read more

Delaying the Return of the Rule of Law

Anonymous Liberal asks why AG Mukasey is refusing to turn over the new "family jewels"–the OLC opinions authorizing torture and warrantless wiretapping. Now, as a lawyer, AL is challenging the legal basis to withhold those opinions. But I’m interested in the tactical reason Mukasey is withholding those opinions.

Delaying the OLC Opinions and Holder’s Nomination

I would suggest we think about the timing–not only of this refusal, but also recent GOP attempts to stall Eric Holder’s confirmation process.

As Pat Leahy laid out in a statement, the Republican response to early discussions of Holder’s nomination were quite supportive.

In my statement to the Senate on November 20, I commended Senators Hatch, Sessions, Coburn, and Grassley for their nonpartisanship when they praised his selection.  Senator Hatch spoke of his support for Mr. Holder, his experience and reputation. Senator Sessions, a former prosecutor, U.S. Attorney, and State Attorney General who is well aware of the problems at the Justice Department, said he was disposed to support him.  Senator Coburn called it “a good choice.”  In addition, Senator Grassley has acknowledged Mr. Holder’s impeccable credentials while reserving judgment.

But in the last week, Specter and the Republicans have been squawking to postpone Holder’s nomination hearings beyond the January 7 and 8 timeframe when Leahy has them scheduled. They promise, they say in mock good faith, that Holder will be considered and probably approved within a week or so of when Obama takes office on January 20. But with their actions, they’re still calling for what amounts to at least a one-week delay in Holder’s swearing in.

So Republicans are now attempting to orchestrate at least a one week delay in the time when Holder becomes Attorney General, to January 27 or thereabouts.

Mukasey’s refusal to turn over the OLC opinions looks like it may cause the same kind of delay. The first report of the delay on OLC opinions–based on a December 3 Mukasey press conference–pointed specifically to the inauguration as the day when they might be turned over.

But the Justice Department’s new leaders may not gain access to the Bush administration’s most sensitive legal opinions until after the January inauguration, Mukasey told reporters in what could be his final news conference.

Read more

Good Question

The Bush Administration is in Vaughn Walker’s courtroom today, trying to convince him to just give the telecoms immunity with no further scrutiny.

But given the questions Judge Walker has posed to the Administration, it looks like it won’t be that easy. For example, there’s this question, which highlights just how nutty this retroactive immunity is:

What exactly has Congress created with § 802 (in Pub L No 110-261, 122 Stat 2467, tit II, § 201 (2008))? It does not appear to be an affirmative defense but rather appears to be a retroactive immunity for completed acts that allegedly violated constitutional rights, but one that can only be activated by the executive branch. Is there any precedent for this type of enactment that is analogous in all of these respects: retroactivity; immunity for constitutional violations; and delegation of broad discretion to the executive branch to determine whether to invoke the provision? 

He goes from there to ask several more questions getting at that pesky separation of powers thing. You know–separation of powers, which says that the courts have the ajudicatory function?

In making the certification called for by section 802(a)(5), is the Attorney General performing an adjudicatory function? That is, is he not making a determination that only a court can make?

They are all good questions. And they suggest that Walker is not going to simply roll over and abdicate his Article III function. Which probably means this will be appealed beyond the time when the Bush Administration leaves office.

Which I guess means we ought to be preparing some questions for Eric Holder about FISA at his confirmation hearing.