Wil Hylton writes for GQ magazine about the situation of Attorney General Eric Holder. Hylton outlines how the Justice Department, under pressure, walked away from an investigation of the Bush Administration's policy on torture and a trial for 9-11 planner Khalid Sheikh Mohammed in civilian court. His sketch of Holder then concludes:
....On national security, Holder continues to struggle for footing. In case after case, he seems to have reconciled himself to policies that he would have once condemned. In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee's conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis's decision and believed the finding of misconduct was correct --- but was unwilling to overrule a nonpolitical employee on such a sensitive issue. That seems reasonable, except that other DOJ sources say it's ridiculous to portray Margolis as nonpolitical. "His whole approach," one longtime DOJ insider told me, "is skewed by his desire to protect the department from embarrassment."
In April, Holder watched his nominee to head the Office of Legal Counsel, where the torture memos originated, withdraw from consideration after more than a year of painful stalemate in the Senate Judiciary Committee. Although Dawn Johnsen refuses to blame Holder or Obama for allowing her nomination to fail, she says a primary objection among Senate Republicans was her opposition to torture. As a law professor during the Bush years, Johnsen was vehement in her criticism of the OLC opinions. "That played a big role in the failure of my nomination," she told me from her cell phone as she made the long drive home to Indiana this summer. "But I have no regrets about taking those positions." Two Republican staffers on the committee confirmed Johnsen's explanation. Six years after the OLC memos, the only lawyer to be punished for the torture policy is one who strenuously opposed it.
This summer, Holder watched the administration's first terror trial, of the child soldier Omar Khadr, begin—not in civilian court in view of the world, but on the Guantánamo base itself, using a hastily revised rule book that Pentagon lawyers did not unveil until the morning of the first hearing, and with a handful of the most respected Guantánamo journalists banned from observing the proceedings and ordered off the base—an absurdist spectacle that one DOJ official described to me as "making the case against military commissions for us."
Of the fifty-seven habeas hearings that have taken place at Guantánamo, some thirty-eight prisoners have been set free by a judge. Yet the Holder Justice Department is denying habeas hearings to the prisoners atevery other U.S. facility, including more than 600 detainees at Bagram Air Base in Afghanistan. Despite clearly promising to grant habeas to enemy combatants, Holder and Obama now insist that they never intended to do any such thing. Only the prisoners who happen to be housed in Guantánamo, they say, have a right to court. Prisoners who were shipped anywhere else have an entirely different set of legal rights—which is to say, none at all.
And in September, Holder found himself in perhaps the most surprising position of all --- defending the administration's right to assassinate a U.S. citizen, even if he hasn't been convicted of any crime. According to a Justice Department brief filed in the case of Anwar al Awlaki, a radical Imam who was born in the U.S., the Obama Administration now claims it has the right to assassinate a citizen based on suspicion alone.
All of which raises the fundamental question that surrounds Holder's legacy at Justice: Given his failure to provide a "reckoning" for torture, given his refusal to extend the rule of law to enemy combatants, given his inability to defend citizens against assassination by their own government, and given that he has already accomplished the thing that initially brought him to the DOJ, what, precisely, keeps him in the job now?
On my last meeting with Holder, I decided to ask him whether the administration had ever seriously intended to grant court hearings to enemy combatants. "Did you even discuss it?" I asked.
Holder shrugged. "We took a view with regard to whether habeas applied at Bagram, and the courts upheld us," he said, "but there have been cases at Guantánamo."
"Thirty-eight of those cases, you've lost," I pointed out. "Doesn't that make you question whether you should offer habeas to the 600 prisoners at Bagram?"
"No," he said. "I mean, I think people in the theater of war are different than what you have in Guantánamo."
"What's the difference between a longtime Bagram prisoner and a longtime Guantánamo prisoner?" I asked. "Isn't there any duration after which they deserve a hearing?"
"In the past," he said, "a detainee could be held for the duration of the conflict."
"You've got to admit, that seems outrageously broad. This conflict could go on forever."
"But see, that's the deal," Holder said. "This conflict is different from what we have experienced in the past, where there were formal declarations of war, and nations were fighting nations. Now it's something different. So we've tried to apply the traditional law to this new situation."
"But before the inauguration," I said, "both you and the president said that habeas should apply to enemy combatants."
"I'm not sure I ever opined on that," Holder said.
"I could read you a quote."
Holder laughed uncomfortably.
"Here's the quote: 'Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,' and a few other things."
Holder was silent. "But I was talking about Guantánamo," he said. "I'm pretty sure I was talking about Guantánamo."
This seemed wrong, but I changed the subject. "What about the Awlaki case?" I asked. "How do you feel about the argument that the government can kill a citizen without a trial?"
Holder nodded, thinking. Then he said slowly, "I'm not saying there's a policy like that, but a couple of things strike me. First off, there's no denial on his part that he's an active operational terrorist. Two, he has the ability to make use of the courts. He chose not to do that. His father filed on his behalf. And the notion that the courts intervene in an armed struggle seems inconsistent with the separation of powers."
"If you wanted to listen to his telephone calls, you'd need a court order," I pointed out. "But not to killhim?"
"The law is pretty clear that a person who becomes an active participant in the Al Qaeda effort is subject to the same treatment as one who is actively engaged in battle against us."
"But that's what a court would have to determine, isn't it? Whether he's with Al Qaeda or not."
"Well," Holder said, "we went through a whole series of reasons why that lawsuit should fail. The lawsuit just doesn't hold water."
As we went back and forth, I began to realize that it was impossible to know how much of Holder's argument he really believed, and how much he was merely willing to say. Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn't matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: "Eric has this instinct to please. That's his weakness. He doesn't have to be told what to do—he's willing to do whatever it takes. It's his survival mechanism in Washington."
And then I remembered another moment, months earlier, sitting in his office on the heels of the KSM decision. Holder seemed deflated and tired, and in an attempt at humor, I pointed to the painting of Bobby Kennedy and made a joke about the independence of the attorney general. Holder bristled. "Some people say Bobby was pretty independent," he snapped.
I nodded, and he seemed to relax. "But yeah," he said, pointing at another painting across the room. "By contrast, Elliot Richardson."
As Nixon's third attorney general, Richardson lasted only five months, resigning in protest when the president ordered him to fire the Watergate prosecutor. "He has just one year under his name," Holder mused. "There's no dash. There's no hyphen. He lasted just a number of months, but he did the job. He did the absolute right thing. When asked to do something he felt was inconsistent with his oath as attorney general, he resigned."
Holder paused.
"So," he said quietly. "He's a hero."