Attorney General Eric Holder’s agenda begins and ends with delivering favors to Obama’s constituencies
Feb 25, 2013, Vol. 18, No. 23 • By CHARLOTTE ALLEN
On the morning of January 21, just before President Obama’s second inauguration, Rep. Paul Ryan, the Wisconsin congressman and House budget chairman who had run unsuccessfully as the Republican candidate for vice president, was roundly booed by the gathered crowd as he left the Capitol to attend the ceremonies on the Mall. Within minutes Daniel J. Freeman, a young career trial lawyer with the Voting Section of the U.S. Justice Department’s Civil Rights Division who was at the Capitol for the festivities, took credit in a Facebook post for instigating the anti-Ryan derision. “Just started the crowd booing when Paul Ryan came out,” he wrote.*
What is interesting about Freeman’s boast isn’t just that a career civil servant considered himself entitled to indulge in, and encourage others to indulge in, some public and highly partisan incivility—helping to give Obama’s second inauguration quite a different tone from that of his fellow Democrat John F. Kennedy, who had declared in his 1961 Inaugural Address, “We observe today not a victory of party, but a celebration of freedom.” It’s that Freeman, a 2007 graduate of Yale Law School who started working for the Justice Department in 2010, mirrors in his professional interests two of the political and ideological preoccupations of his ultimate boss, Attorney General Eric H. Holder Jr., appointed by Obama soon after taking office in 2009 and one of the few high officials in the administration who has survived into Obama’s second term. While in law school and during a yearlong fellowship afterwards, Freeman interned, apprenticed, and acted as student representative for several self-described “human rights” organizations, including the American Civil Liberties Union and its affiliate the New York Civil Liberties Union. Freeman’s legal focus during that time, as he described it on Linked-In, was “torture” and “military tribunals”—that is, attacking the counterterrorism policies of Obama’s Republican predecessor, George W. Bush. War on Bush’s war on terror has been a signature obsession of Holder’s as well. In a June 2008 speech to the American Constitution Society, a liberal law group to which Freeman had belonged at Yale, Holder declared that “we owe the American people a reckoning” on such Bush-era interrogation practices as waterboarding and sleep deprivation. At the time Holder, who had served as deputy attorney general during Bill Clinton’s second term, was a partner with the elite Washington law firm Covington & Burling, whose attorneys (although not Holder himself) were providing free legal representation to suspected-terrorist detainees at the Guantánamo Bay Naval Base in Cuba.
As for the Justice Department’s Voting Section, the Holder years have been marked by an aggressive effort on the part of the section’s lawyers to use the 1965 Voting Rights Act to nullify state voter-identification laws on the ground that requiring people to present a photo ID at the ballot box disenfranchises blacks and other members of ethnic minorities. Holder went so far as to call voter-ID laws “poll taxes” in a 2012 speech to the NAACP, referring to the onetime Southern-state practice, ruled unconstitutional in 1966, of denying blacks the vote by exacting a price that the poorest of them could not afford to pay.
Like master, like man, the old saying goes. In this case, it’s like Holder, like Freeman. But it’s also like Obama, like Holder. Each of Holder’s belligerent stances on the above two issues has served and indeed reflected the interests of key Democratic constituencies that Obama courted during both his campaigns. One of the president’s first executive orders, signed just two days after his inauguration on January 20, 2009, was a pledge to shut down the military prison at Guantánamo, which houses about 240 foreign nationals suspected of terrorist activities, including Khalid Sheikh Mohammed (KSM), the self-proclaimed mastermind of the massacre of 9/11. Tellingly, Obama tasked the Justice Department with closing the facility within a year and sending the detainees either to the United States for trial or back to their home countries. Getting rid of Gitmo—an event yet to materialize to this day—had been a nonnegotiable demand of the progressives who formed the hard-left substrate of Obama’s base. They had also beaten the drum for Obama to hold war-crimes trials for Bush, former vice president Dick Cheney, and other Bush administration officials connected to torture allegations and wars in Islamic countries.
Similarly, on February 17, 2009, less than a month after Obama took office, Holder, 62, the first African-American U.S. attorney general, celebrated black history month with a controversial speech to several hundred Justice Department employees in which he castigated America as “a nation of cowards” living in “race-protected cocoons” who needed to have “frank conversations” about racial inequality. The implication was that whites were in sore need of reeducation. In another speech Holder vowed to “revitalize the Civil Rights Division” at Justice. That had a special ideological meaning. In his 2008 address to the American Constitution Society, Holder had promised that if Obama won the election, his Justice Department would be “looking for people who share our values,” and that “a substantial number of those people would probably be members of the American Constitution Society.”
This amounted to a declaration that workaday civil-service hiring at Justice, supposed to be strictly merit-based, would be governed by the same political considerations that have traditionally governed hiring at the very top, where assistant attorneys general in charge of divisions are appointed by and serve at the pleasure of the president. And so it was. According to hiring documents obtained by the PJ Media website under a 2011 court order (Justice had refused to provide the documents voluntarily under the Freedom of Information Act), the Voting Section made 16 new hires, among them Dan Freeman. The résumés of all 16 indicated involvement in liberal-activist causes ranging from abortion rights to amnesty for illegal immigrants. Many of the new hires had been directly involved in legal challenges to voter-ID laws, while others had tried to get state laws forbidding voting by convicted felons overturned (federal courts have declined to strike down the felon-disenfranchisement laws, which are permitted by the Fourteenth Amendment). The beefed-up Voting Section under Holder began an aggressive campaign against voter-ID laws, notably in South Carolina and Texas, invoking Section 5 of the Voting Rights Act, which requires changes in voting procedures in nine states (mostly in the South) and localities in seven other states to be approved by Justice in a process called “preclearance” before they can take effect.
Furthermore—and this is what Holder might have meant when he announced his intention to “revitalize” the 350-lawyer Civil Rights Division—Holder’s division chief, Associate Attorney General Thomas Perez, appointed by Obama in 2009, seemed to reverse abruptly a Bush administration policy of strict race-neutrality in enforcing voter-fraud and voter-intimidation laws. According to Who’s Counting?, a book about election fraud by National Review columnist John Fund and Bush-era Civil Rights Division counsel Hans von Spakovsky, Holder’s Justice Department canceled an investigation into allegedly stolen ballots in black-majority Noxubee, Mississippi, and dismissed a Bush-era lawsuit against the state of Missouri for failing to purge registration lists of deceased and no-longer-resident voters as required by the National Voter Registration Act of 1993 (according to the book, numerous counties in Missouri had more registered voters than residents).
The most notorious turnabout from Bush-era policy was a Justice Department decision, on May 15, 2009, to abandon most of a voter-intimidation lawsuit filed during Bush’s last weeks in office against the New Black Panther Party for Self-Defense, which had stationed two men in Panther uniform, one of them videotaped wielding a nightstick, in front of a polling place in Philadelphia on Election Day 2008. Under Holder and Perez, Justice dropped charges against all the defendants except the man with the nightstick, King Samir Shabazz, against whom the department obtained a narrow injunction preventing him from displaying a weapon within 100 feet of a Phildelphia polling place through November 15, 2012. “We sat in stunned disbelief,” wrote J. Christian Adams, a former career Voting Section attorney who had helped file the Panther suit, in a 2011 book, Injustice: -Exposing the Racial Agenda of the Obama Justice Department. “Our superiors had sided with thugs, and all we could do was silently look at each other, helpless and beaten.” Adams, who resigned from Justice in 2010, and Spakovsky were the driving forces at PJ Media behind the court order for the release of the Holder-era hiring documents.
In another Freedom of Information Act lawsuit, this one filed by the conservative activists at Judicial Watch seeking documents pertaining to Justice’s sudden change of legal stance in the Panther case, U.S. District Judge Reggie B. Walton noted, in a July 23, 2012, opinion, that some of the emails and memos indicated that high-level Obama appointees at Justice had been discussing the case and its resolution during the days before the department filed its request for dismissal. This, Walton wrote, “would appear to contradict” Perez’s sworn testimony before the U.S. Commission on Civil Rights, an independent federal agency that was investigating the Panther volte-face, “that political leadership was not involved in that decision.” In a House hearing on the matter on March 1, 2011, Holder expressed irritation when Rep. John Culberson, R-Texas, read aloud a statement by Bartle Bull, a lifelong Democrat famous for his participation in the civil rights movement of the 1960s. Bull, who had witnessed Shabazz slapping his nightstick against his palm at the door of the polling place, stated that this was the most serious case of voter intimidation he had witnessed in his career. Holder countered that Bull’s characterization of the event “does a great disservice to [the 1960s activists] who put their lives on the line, who risked all, for my people.”
“My people”? Holder’s father and maternal grandparents were immigrants from majority-black Barbados, where slavery was abolished by the British during the 1830s and Jim Crow unknown. Growing up in the Bronx, Holder moved easily from an academic program for gifted youngsters to Columbia University for both college and law school, graduating from the latter in 1976. Then followed a successful career as a federal prosecutor in Washington, appointment by Ronald Reagan to a judgeship for the District of Columbia in 1988 (where he was highly respected), and nomination by Bill Clinton as U.S. attorney for the District of Columbia in 1993 and, in 1997, as deputy to Attorney General Janet Reno. But Holder’s foray into African-American victimology, like the “reckoning” on Bush’s war against terror that he had promised progressives in mid-2008, was an appeal to a key portion of Obama’s base. “The Civil Rights Division has been busy for the past four years making sure that Obama got reelected,” said a former Justice employee in an interview. “There was even Obama campaign stuff on the office walls of employees’ offices, which is supposed to be a violation of federal policy.”
Under Perez, for example, the unusually active division has turned the subprime mortgage implosion into a civil rights cause, extracting a settlement of $335 million in December 2011 from Bank of America (which had acquired subprime pioneer Countrywide Financial Corporation) and $175 million in July 2012 from Wells Fargo & Co. Both lawsuits alleged the institutions’ mortgage practices had a “disparate impact” on blacks and Hispanics, who tended to take out more of the high-risk loans than whites (the department accused the banks of steering minority-group members into the loans, but neither has admitted any wrongdoing). Justice further shored up Obama’s Latino base with a 2010 suit challenging Arizona’s new anti-illegal immigration law. The Supreme Court struck down most of the law’s provisions as preempted by federal immigration policy on June 25, 2012, ten days after Obama announced that his administration would suspend immigration enforcement and streamline the route to citizenship for many young illegals. The Justice Department also filed a racial-profiling civil suit against Joe Arpaio, a hardline and outspoken opponent of illegal immigration reelected in November 2012 for a sixth term as sheriff of Arizona’s Maricopa County.
Then there is Obama’s overwhelmingly Democratic gay and lesbian base, appeals to which formed a prominent part of the president’s inaugural speech in January. On February 23, 2011, Holder, acting on Obama’s orders, had announced that the Justice Department would cease defending the constitutionality of a key segment, Section 3, of the Defense of Marriage Act (DOMA), a 1996 law signed by Clinton, that defines marriage for federal purposes as existing only between a man and a woman. Under the Constitution it is supposed to be the president’s—and thus the Justice Department’s—duty to defend duly enacted federal laws in court. Justice effectively left no one to defend DOMA in several pending lawsuits alleging that the law unconstitutionally discriminates against gays and lesbians. In one of those cases, U.S. v. Windsor, which the Supreme Court will hear on March 27, the GOP-controlled House of Representatives directed its bipartisan legal advisory group to hire a lawyer in order to mount a DOMA defense, but there is a question as to whether the group has legal standing to defend a federal law. Meanwhile, gay-rights groups, liberal politicians, and the New York Times are currently urging Justice to get involved in Hollingsworth v. Perry, another same-sex case before the Supreme Court, regarding the constitutionality of Proposition 8, a 2008 ballot measure in California that also defines marriage as between a man and a woman. The justices will hear argument in Hollingsworth on March 26, and gay-rights activists want the department to file a friend-of-the-court brief arguing that Proposition 8 violates the Constitution’s equal-protection clause.
One might ask: What did you expect? America’s electorate has twice voted into office perhaps the most liberal president the country has ever known. That Obama would appoint Holder, who has never made a secret of his own liberal views (he opposes the death penalty and favors draconian federal hate-crime laws), to the post of the nation’s chief law-enforcement officer should surprise no one. Politicization of the office of attorney general—and complaints about politicization from the party out of power—have been a constant in Washington at least since the days of Franklin D. Roosevelt, who used his attorney general, Homer S. Cummings, to draft the Supreme Court-packing legislation in 1937, surely setting the gold standard for egregious interference with the separation of powers. John F. Kennedy chose his relatively inexperienced brother to fill the position. Richard Nixon’s attorney general, John Mitchell, went to prison for obstruction of justice and perjury over his role in the Watergate break-in and its subsequent cover-up. Alberto R. Gonzales, Bush’s attorney general from 2005 until his resignation in 2007, was criticized by an inspector general following the dismissal of nine U.S. attorneys for improper political reasons, and critics charged that Gonzales ignored and even misled Congress regarding abuses by the FBI in collecting information about suspected terrorists under the post-9/11 Patriot Act. Another inspector general’s report found that the Civil Rights Division during the Bush years had itself made hiring decisions on the basis of ideological affiliation, allegedly giving preference to lawyers whose résumés listed membership in the Federalist Society, the conservative opposite number to the American Constitution Society at law schools. Holder, like those predecessors, has a reputation for absolute loyalty to the presidents he has served. For example, he helped arrange—unwittingly, he later insisted—Clinton’s pardon of billionaire financier Marc Rich, who was under indictment for tax evasion and illegal oil purchases from Iran, just hours before Clinton left office on January 20, 2001 (Rich’s former wife, Denise, had been a major Democratic donor).
Janet Reno, Holder’s immediate superior under Clinton, did her fair share of what appeared to be politics-based law enforcement. She had convened a grand jury for 16 months during the mid-1990s with the goal of finding evidence of an organized campaign by national antiabortion groups to bomb clinics and kill their personnel. Reno’s Justice Department abandoned the probe in 1996 without securing a single indictment, prompting conservatives to charge that she had convened the jury solely to placate the radical feminists who formed an important part of Clinton’s voter base. Certainly Holder could be said to have done less tangible harm to individuals than Reno. There has been no repeat of Waco, with its 76 dead in an FBI attack on a religious cult’s compound in April 1993, or a Holder equivalent of the Elián González incident, in which a domestic dispute over the custody and repatriation of a 6-year-old Cuban boy escalated at Reno’s instigation into a door-busting, machine-gun-wielding federal SWAT raid on the home of the frightened child’s uncle in Miami. But there is a difference: “Reno had her own agenda, which wasn’t necessarily Clinton’s,” said a former Justice employee. “She wasn’t a D.C. political hack the way Holder is.”
What is different about Holder is the sheer number of ideological pies into which he has sunk his thumb during four years in high office. Furthermore, a significant number of those adventures have produced results ranging from equivocal to disastrous, lending a Don Quixote-like cast to Holder’s quests for justice. Even in the successful Justice Department challenge to Arizona’s immigration law, the Supreme Court upheld the most tactically important feature of the statute: the right of law-enforcement officers to check the immigration status of people stopped for other reasons, including traffic violations. A 2008 report from the Maricopa County attorney’s office had found that 22 percent of the felons convicted in the county, which encompasses the Phoenix area, were illegal immigrants, even though they accounted for only 9 percent of the population.
The most spectacular failure of the Justice Department’s forays into politically contentious law enforcement to date—and the one that has made Holder’s tenure most controversial—was Operation Fast and Furious, a 2009-2011 effort by Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to have licensed U.S. gun dealers in border states sell weapons to illegal straw purchasers who would then pass them on to Mexican drug dealers. The tactic, questioned by many career officials in the ATF because it meant losing control over the firearms, seemed to be linked to Holder’s own views on gun control, which were predictably liberal. In 1995, for example, when Holder was U.S. attorney for the District of Columbia, he gave a speech to the Women’s National Democratic Club expressing a need for society to “change the way in which people think about guns . . . and make it something that’s not cool, that it’s not acceptable . . . not hip to carry a gun anymore.” It was difficult not to speculate, as many people did, that the real goal of Fast and Furious wasn’t to finger the leaders of Mexican drug cartels via walked guns, but to demonstrate how easy it was for U.S.-sold firearms to end up in the hands of foreign criminals—with the hope of fomenting public outrage that would trigger tougher gun restrictions in America. If that were true, Fast and Furious could be said to resemble Obama’s use of the December 14 massacre of schoolchildren in Newtown, Connecticut, to launch a gun-control offensive in Congress. (Holder and Obama met in the White House on January 28 in a gun-control photo-op with the police chiefs of Newtown and other cities where shooting rampages have occurred in recent years.)
In any event, Fast and Furious proved to be a calamity, with the ATF losing track of nearly 2,000 weapons, hundreds of which were later recovered at crime scenes and in Mexican drug lords’ caches. A Mexican legislator claimed that about 150 Mexican civilians had been killed or wounded in the altercations, which did little for diplomatic relations between the United States and Mexico. Finally, a U.S. Border Patrol agent, Brian Terry, was murdered on December 14, 2010, during a firefight over the interception of a drug shipment in southern Arizona. Several walked weapons were found at the scene of the homicide, and Operation Fast and Furious was shut down shortly afterwards. Both Holder and Obama maintained they knew nothing about the gun-walking program until after Terry’s death. Holder, however, refused to turn over about 1,500 pages of Fast and Furious documents to a House oversight committee investigating the debacle this past summer, and the White House refused to cooperate with the Justice Department’s inspector general, Michael Horowitz, who was also conducting a probe. On June 28, the House voted 255-67 to hold Holder in contempt of Congress, the first time it had ever taken such a dramatic step against a sitting attorney general.
The Holder Justice Department’s legal assault on state voter-ID laws has not exactly been a success, either. Such laws are overwhelmingly popular. In a Washington Post poll last August, 74 percent of respondents believed voters should have to show some form of photo-identification when they cast ballots (57 percent said they “strongly” agreed). Support among the elderly and those with household incomes under $50,000—cohorts that might be least likely to possess identification documents—was in the 75 percent range, and two-thirds of nonwhites also backed voter ID. This is not surprising, since photo-IDs are now required for a range of everyday activities, from driving a car to boarding an airplane to cashing a check to buying a six-pack of beer. Some 30 states already require voters to show ID at polling places, as a deterrent to fraudulent and duplicate voting.
On August 30 of last year, a three-judge federal court panel in Washington upheld the Justice Department’s block on a photo-ID law in Texas, the largest state subject to preclearance under the Voting Rights Act. The panel held that requiring a photo-ID would impose “strict, unforgiving burdens” on poor blacks and Hispanics in rural areas. (The IDs were free, but residents who lacked copies of their birth certificates would have to spend about $22 to obtain necessary documentation, which the court said would force “poorer citizens to choose between their wages and their franchise.”) That meant, however, that an older Texas voter-ID law that did not require a photograph would continue in effect.
Then, on October 10, a different three-judge panel unanimously rejected a similar discrimination argument against South Carolina, another preclearance state. South Carolina’s law allowed for identification by affidavit if a voter found it too difficult to obtain an official photograph. (The court did say that it was too late for South Carolina to implement the law in time for the November 2012 election.) On January 4 the panel further ruled that the federal government—that is, U.S. taxpayers—would have to reimburse South Carolina as a prevailing party for some of the $3.5 million that the state spent on court costs and legal fees in order to defend its statute.
It is believed by some observers that the entire South Carolina lawsuit was gratuitous; that the Voting Rights section had chosen to ignore an internal memo (which Justice has refused to release) urging preclearance of the South Carolina statute, which gave state voters a generous range of five sources of acceptable photos plus the affidavit alternative. In 2005 the Justice Department had precleared a photo-ID law in Georgia that was nearly identical to South Carolina’s. But Holder’s Civil Rights chief Perez, in a 2011 letter to South Carolina’s government, insisted that the Voting Rights Act would be violated in that state because 10 percent of South Carolina’s nonwhite voters lacked photo-identification, in contrast to 8.4 percent of white voters.
Nonetheless, Holder, Perez, and the Civil Rights Division may have painted themselves into a corner. The Supreme Court will be hearing arguments on February 27 on the constitutionality of Section 5 of the Voting Rights Act, in Shelby County v. Holder. (Shelby County is in Alabama, another preclearance state.) The main argument is that Section 5, reauthorized by Congress for 25 years in 2006, not only intrudes upon state sovereignty by requiring federal micromanagement of the tiniest changes in local election procedures (such as moving a polling place a couple of blocks), but is anachronistic. Section 5, which puts the affected states and localities into a kind of federal receivership under the thumb of the Justice Department, started out in 1965 as an emergency response to Southern-state abuses, with an original shelf-life of only five years. Yet Congress has repeatedly renewed Section 5 along with the rest of the Voting Rights Act, rewriting the act’s preamble in 1982 to permit Justice to attack state and local election procedures that produce the “result” of lower minority turnout, whether intended or not. Furthermore, starting in the 1970s, Justice began including Hispanics, Asian Americans, and other groups besides blacks as eligible for Voting Rights Act protection. That resulted in three boroughs of New York City, hardly a stronghold of the Ku Klux Klan, finding themselves subject to Section 5 preclearance to this day.
Perhaps because of Section 5’s obvious trespass on federalism, the provision had been falling into disuse as an enforcement mechanism well before Obama took office. (A different provision, Section 2, still allows the Justice Department to sue states and localities for violating the act after the alleged violation takes place, bypassing the heavy-handed preclearance process.) Indeed, the last time before Holder that Justice had invoked Section 5 to block a state election law was in 1994. And just as Holder’s department began revving up its Section 5 attacks on South Carolina and Texas, the Supreme Court began dropping hints that Section 5’s long-term prospects were in doubt. In a 2009 decision, Northwest Austin Municipal Utility District No. 1 v. Holder, the High Court ruled 8-1 to allow the utility district to escape Section 5 oversight, with even liberal justices signing on to an opinion by Chief Justice John Roberts stating that the provision “imposes current burdens and must be justified by current needs.” In 2008 the Supreme Court had upheld a photo-ID law in Indiana against a Democratic party challenge. Holder’s promise to “revitalize” the Civil Rights Division could well result in the Supreme Court’s ruling that the very apparatus he has chosen for revitalization is unconstitutional.
Similarly, Holder’s efforts to nullify the Bush administration’s war on terror have resulted in, well, not much. Long before Obama became president, he had promised his progressive base that he would reverse nearly all of Bush’s antiterrorism policies. “As president, I will close Guantánamo, reject the Military Commissions Act, and adhere to the Geneva Conventions,” Obama declared in an August 10, 2007, speech. The Military Commissions Act, signed into law by Bush in 2006, established military tribunals, with their limited constitutional protections, as the venue for trying foreign-born enemy combatants captured outside the United States. The law, revised in 2009 to ease its due process restrictions somewhat, effectively ratified the Bush administration’s use of tribunals to try foreigners suspected of 9/11-related activities.
Civilian rights and civilian trials for foreign terrorism suspects were a rallying cry of the left throughout the Bush years but managed to outrage nearly everyone else. Holder’s decision to classify the so-called underwear bomber, the Nigerian national Umar Farouk Abdulmutallab, who was caught with explosives on a Northwest Airlines flight from Amsterdam to Detroit on Christmas Day in 2009, as a civilian despite evidence of al Qaeda ties—and also to have the FBI read him his Miranda rights after only 50 minutes of interrogation—met with much criticism that the attorney general was sacrificing national security to a preoccupation with procedural niceties for alleged terrorists. Fortunately for Holder’s political future, Abdulmutallab, after firing his lawyers and insisting on representing himself, pleaded guilty in 2011 to eight counts, including attempted mass murder and attempted use of a weapon of mass destruction; he was sentenced to life in prison.
Even more scandalous, in the eyes of Holder’s critics, was his decision in November 2009 to try Khalid Sheikh Mohammed in a civilian federal court in lower Manhattan. That meant terminating an ongoing military trial of Mohammed in Guantánamo, where KSM had already indicated he would plead guilty. Bipartisan protests against Holder’s proposed Manhattan trial venue quickly ensued, especially among New Yorkers angered by the months of likely traffic paralysis near the courthouse, and also by the prospect that more lenient civilian trial rules could result in KSM’s release in the very shadow of 9/11’s Ground Zero. Holder tried to calm the furor by hinting that it would actually be a show trial: “Failure is not an option.” To forestall such trials, Congress in 2011 passed a law forbidding the use of federal funds to transfer Guantánamo detainees to the United States—a law criticized both by Obama (who signed it anyway) and by Holder, who continued to insist that KSM was due a civilian trial. KSM and four alleged co-conspirators are currently undergoing a second trial before a military commission at Guantánamo. The military prison at the base remains open, despite a promise by Obama during his 2012 campaign that he would renew efforts to shutter it. One problem is that few other countries want to take any of the detainees at the base.
Holder also promised a “reckoning” for Bush-era waterboarding and other harsh interrogation techniques practiced by the CIA at Guantánamo and also at secret CIA prisons—or “black sites”—abroad where some suspected terrorists had been forcibly transported in a process called rendition. Whether harsh interrogation—forcing prisoners to stand for long periods of time or assume uncomfortable positions, assaulting their ears with high-decibel rock music, and leaving them naked in chilly cells—actually amounts to torture remains an open question, since none of those methods inflicts the intense pain or lasting physical damage traditionally associated with torture. Most of the interrogation methods relied on deception and fear rather than physical torment to persuade the suspect to disgorge information: slaps, sleep deprivation, a harmless caterpillar described as a stinging insect.
Waterboarding was the most controversial of the interrogation methods, since it involved tying the suspect to a plank and simulating drowning, by all accounts a terrifying experience. Yet, as a 2007 investigative report by ABC News revealed, waterboarding was used on exactly three al Qaeda-linked figures, all during the course of a single year, 2002-2003. One of the three was KSM, who had been held in a CIA secret prison since 2003 before being transported to Guantánamo. Fewer than three dozen prisoners in total—about a third of those in CIA custody—were subjected to any form of harsh interrogation. And if any excuses might be made for their treatment, nearly all the extreme measures were carried out during the first two years after the 9/11 massacre, when government agents were desperate to obtain information quickly about any possible future 9/11s. And it indeed appeared that enhanced interrogation yielded valuable information, some of it helping to lead, for example, to the location of al Qaeda leader Osama bin Laden in Pakistan.
Meanwhile Jay Bybee, assistant attorney general in charge of Justice’s Office of Legal Counsel under Bush (Bybee is now a federal appeals court judge for the Ninth Circuit), and John Yoo, a law professor at the University of California, Berkeley, who worked in the Office of Legal Counsel from 2001-2003, had written a series of letters and memos in 2002 and 2003 for the CIA and the Defense Department giving the green light to waterboarding and other harsh interrogation tactics. The memos concluded that the tactics did not meet the legal definition of torture and were permissible if not engaged in on U.S. soil. Yoo, an advocate of expansive presidential powers, was an intimate of Cheney, ever the interrogation hardliner. Many career lawyers in the Justice Department believed that, via the Office of Legal Counsel, which gives legal advice to other government agencies and prides itself on its integrity, “the White House was pressuring the Justice Department and politicizing it,” a former Justice lawyer told me. “It was a very uncomfortable time for the department.”
In 2003 Jack Goldsmith, now a Harvard law professor, succeeded Bybee. In 2004 Goldsmith rescinded all the Bybee-Yoo interrogation documents and then resigned from office. That same year the CIA’s inspector general conducted an investigation of the CIA’s interrogation practices and turned over the resulting memo to the U.S. attorney’s office for the Eastern District of Virginia, which has jurisdiction over the CIA’s headquarters in Langley, Virginia. A special team of career prosecutors from that office also performed an investigation, but it eventually issued “declination memos” citing such reasons as insufficient evidence of criminal conduct and intent and low probability of conviction for all involved in the interrogations except one outside contractor, who was convicted of assault. By 2004 the unauthorized abuse of detainees by members of the military at the Abu Ghraib prison in Baghdad had become public knowledge, shocking Americans and leading to court-martials and prison sentences. In 2005 Congress passed a law limiting the use of harsh interrogation, and in 2006 Michael Hayden, a former director of the National Security Agency, became CIA director and specifically outlawed waterboarding and other extreme techniques.
In November 2005, in the midst of the furor over waterboarding, the CIA had destroyed dozens of videotapes its agents had made of their interrogations of the two other al Qaeda suspects who had been waterboarded, Abu Zubaydah and Abd al-Rahim al-Nashiri, both prisoners at a CIA black site believed to be in Thailand. The destruction did not come to light until 2007, when information about it was leaked to the New York Times. In January 2008, Michael Mukasey, who succeeded Gonzales as attorney general, appointed John H. Durham, an assistant U.S. attorney in Connecticut with a reputation for securing convictions in tough cases, to conduct an independent investigation of the tape destruction to find out whether there had been obstruction of justice or other criminal misconduct. Durham duly convened a grand jury in Alexandria, Virginia.
What Holder did when he encountered this state of affairs upon becoming attorney general in 2009 was essentially to use the CIA’s interrogation practices to make a humiliating spectacle out of both the intelligence agency and the Bush Justice Department. In April 2009, Obama released to the public four previously confidential “torture memos,” as they came to be called, one of them written by Bybee for the CIA in 2002 providing details of 10 different Bybee-approved techniques, including waterboarding, designed to “increase pressure” upon detainees to talk. The other three memos were written by Justice officials in 2005 explicitly condemning those enhanced-interrogation techniques. In May 2009 Holder’s Justice Department announced that its Office of Professional Responsibility (OPR) was nearing completion of an internal investigation of Bybee and Yoo that would not result in prosecution but would lead to a recommendation that the two be disbarred or otherwise disciplined by state bar authorities. (Those disciplinary actions never took place.)
Then, in August 2009, while Durham’s grand jury was still hearing evidence on the tape destruction, Holder expanded the scope of Durham’s mandate to include not just the alleged destruction of evidence but the CIA’s interrogation techniques themselves. He thus ignored (some say never bothered to read) the declination memos produced by the team of career prosecutors of the Eastern District who had decided there wasn’t enough evidence to prosecute. Holder did hint that he might have some new evidence of CIA wrongdoing, because OPR was also conducting a probe of abuses of detainees. This was an unusual task for OPR, whose bailiwick is supposed to be limited to examining alleged ethical violations by Justice lawyers, not the employees of other government agencies. Holder also released a redacted version of the CIA inspector general’s investigation—a gesture that had no tactical significance beyond further demoralizing an already demoralized CIA, whose agents would now have to appear before a grand jury, and playing to the desire of Obama’s progressive base to associate the Bush administration with war crimes. Even Leon Panetta, Obama’s own appointee to head the CIA, protested the reopening of the criminal investigation.
After the great ideological fanfare of 2009, the case against the CIA slowly fizzled out. In November 2010, when Durham had failed to produce any indictments, Holder announced that there would be no charges stemming from the destruction of the videotapes. In June 2011, Holder further announced that he was closing the cases—again because there had been no indictments—of all but 2 of the 100 detainees whose cases had been reviewed for evidence of abusive treatment. Then, on August 29, 2012, Holder declared that those last two cases, both stemming from the deaths of prisoners in CIA custody in 2002 and 2003, would also be closed. Holder maintained that his department had declined prosecution solely because “the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt,” and not because the CIA had been exonerated “regarding the propriety of the examined conduct.”
“Holder was using the CIA as a prop in a political drama,” a former CIA employee told me. “The idea was to wait for the public outrage—but there wasn’t any.” In truth, few Americans cared much about the fates of a few dozen alleged terrorists caught in the aftermath of a catastrophe that traumatized the nation. “Most people just got tired of the argument that enhanced interrogation is always wrong. There’s a streak of pragmatism in the American people. They’d listen to all the human-rights charges, and then they’d say, ‘How about those Redskins?’ ”
And now, more than four years after George W. Bush left office, the stage sets in that political drama have shifted, at least where the war on terror is concerned. Obama’s drone strikes have killed orders of magnitude more suspected terrorists than interrogation at CIA black sites ever did. And as for Holder, as early as March 2012 he argued for the constitutionality of using drones to kill American citizens abroad who were suspected of al Qaeda ties. (Two such drone attacks in Yemen in 2011 targeted and killed U.S. citizens who had never been formally charged with terrorist activities.) White House antiterrorism adviser John Brennan, selected by Obama to become the next CIA director, said in a speech last year that the fatal strikes were “consistent with the inherent right of self-defense.” He sounded as though he were reading from one of John Yoo’s memos defending waterboarding. As Obama goes, so goes Eric Holder’s Justice Department. Like master, like man.