Saturday, November 13, 2010

Eric Holder, Barack Obama and the rule of law in terrorism cases

Marcy Wheeler provides a summary account in "The President Ultimately Made the Call” Emptywheel 11/12/2010 of this Dec 2010 GQ article on Attorney General Eric Holder, Wil S. Hylton, Hope. Change. Reality.

She calls attention to an important fact in the article, that Obama overruled Holder on Holder's decision to put Khalid Sheikh Mohammed on trial, choosing to keep him even longer in the illegal indefinite detention that the Cheney-Bush Administration had imposed on him. After Holder had announced that KSM would be tried in Manhatten, a political storm broke out:

After two months of frantic phone calls between the White House, Schumer, Graham, and Holder, Obama finally pulled the plug. Citing national-security concerns, he invoked the right to choose the trial venue himself. In doing so, Holder aides point out, Obama upended his own detainee policy before a single prisoner had been tried. After going to great lengths to inject structure and law into the process, after assigning senior cabinet officials to devise a coherent system of rules, he then revoked those rules and returned the detainees to a state of legal limbo.

"It was wildly unfortunate," says David Ogden, Holder's former deputy attorney general. "The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable." Others are less forgiving, calling Obama's capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. "There is an important principle at stake here," Holder told me. "You don't shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don't stand for the rule of law when it comes to a case that is politically difficult to bring." Among Holder's political allies, the blame for KSM lay not with Rahm but Obama. [my emphasis]
A big theme in Hilton's article is the court intrigue between former White House Chief of Staff Rahm Emmanuel and Holder. But it also contains this valuable reminder of how irresponsible the Cheney-Bush Administration was, running the Civil Rights Division of the Justice Department in a way that would have warmed the hearts of Jim Eastland or Theodore Bilbo:


Atop half the CRD's offices sat a man named Bradley Schlozman—32 years old, four years out of clerkship, with a right-wing fervor matched only by his disdain for the office he was assigned to help lead. Within days of arriving at the CRD, Schlozman set out to purge liberals from its staff—isolating some of the most experienced lawyers, assigning their cases to younger and more conservative attorneys, and when the older lawyers complained or quit, replacing them with even more young conservatives. Throughout, he was explicit about his plans, writing to friends that the CRD was a cesspool of "commies," "pinkos," and "mold spores" and explaining that his real intention "is to gerrymander all these crazy libs right out of the section." And so he did. Between 2003 and 2007, nearly three-quarters of the CRD's lawyers quit, and according to an internal review completed in 2008, of the ninety-nine lawyers Schlozman hired to replace them, roughly two-thirds were outspoken conservative activists, and the other third were either apolitical or vague in their beliefs. Only two of the ninety-nine confessed to liberal ideas.

Predictably, as the CRD staff veered right, so did its work. During the same four years, the number of cases involving racial discrimination against minorities and gender discrimination against women were cut in half. Meanwhile, cases of reverse discrimination against whites and religious discrimination against Christians shot up. When I asked the current head of the Civil Rights Division, Tom Perez, who was first hired by the administration of George H. W. Bush, what went wrong under the son, Perez became visibly agitated. "The whole process of decision-making was completely obliterated!" he said. "Hiring processes were hijacked! They weren't allowed to bring certain kinds of cases. They weren't allowed to make certain kinds of arguments. I think history will judge the prior administration as the darkest hour in the division's history." [my emphasis]
Given what Holder is admitting here - that the President overruled him in a highly dubious way on an important principle of the rule of law, it seems to me that Holder has made a case for why he should resign his post. Even that he is morally obligated to resign. As Marcy puts it, "Given this detail — the the [sic]President himself replaced justice with politics — he really ought to think seriously about regaining his principle by leaving."

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