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Waterboarding Is Torture, Holder Tells Senators
Justice Dept. Nominee Rejects Policies Of Bush Era but Stresses Bipartisanship

By Carrie Johnson
Washington Post Staff Writer
Friday, January 16, 2009

Attorney General-designate Eric H. Holder Jr. brushed aside Republican concerns about his record yesterday as he charted a new, less divisive course for the Justice Department on issues of national security, civil rights and financial crime.

In his confirmation hearing before the Senate Judiciary Committee, Holder declared that the interrogation practice known as waterboarding amounts to torture, departing from the interpretation of his Bush administration predecessors. He promised to perform a "damage assessment" to evaluate how politically motivated hiring during the Bush era continues to affect the department. And he pledged to work closely with Congress and serve as "the people's lawyer," rather than devote his loyalty solely to the incoming president, Barack Obama.

Holder, a former judge and U.S. attorney in the District, sidestepped Republican efforts to define him by his past mistakes, acknowledging errors but stressing points of agreement rather than political differences. In his comments about counterterrorism, for example, he indicated his support for several provisions of a domestic wiretapping law and promised to consider the ongoing threat posed by nearly 250 detainees at the U.S. military base in Guantanamo Bay, Cuba.

Holder said the country remains in a state of war, but he warned against accepting a "false choice" between upholding civil liberties and protecting national security.

The United States should not "farm out" interrogation to contractors working for the CIA, he said, and the questioning of detainees should follow the safeguards spelled out in the Army Field Manual and the Geneva Conventions.

"I will use every available tactic to defeat our adversaries, and I will do so within the letter and spirit of the law," Holder told a standing-room-only audience in the Caucus Room of the Russell Senate Office Building.

Holder won the support of Sen. Orrin Hatch (Utah) and other Republicans, even those who delivered pointed questions about his support for controversial pardons during the Clinton administration, when he served as the department's second in command. The panel today will hear from law enforcement officials who support Holder's nomination, as well as victims of a Puerto Rican nationalist group whose members won pardons in 1999 with Holder's support.

Senate Minority Leader Mitch McConnell (R-Ky.) and former Bush White House aide Karl Rove had singled out Holder's bid as Obama's most contentious Cabinet nomination.

But Holder appeared to defuse some of the criticism by assembling support from a broad, bipartisan law enforcement coalition and telling senators that he regretted his actions in the 2001 pardon of fugitive financier Marc Rich. President Bill Clinton's clemency award in that case touched off congressional investigations and a grand jury probe in New York.

"I've made mistakes," Holder said. "That was the most intense, most searing experience I've ever had as a lawyer. As perverse as this might sound, I will be a better attorney general if confirmed, having had the Marc Rich experience."

Judiciary Committee Chairman Patrick J. Leahy (Vt.) said the hearing offered a "historic opportunity for the country to move past the partisanship of the past decade" and to install the first African American to serve as the nation's top law enforcement officer.

Holder's race did not take center stage during the day-long hearing but lawmakers obliquely nodded to the issue by lauding the role that his late sister-in-law, Vivian Malone Jones, played in integrating the University of Alabama in 1963.

The GOP opposition met with frustration after Democrats blocked efforts by the panel's ranking Republican, Arlen Specter (Pa.), to subpoena witnesses who have been critical of the pardons, including former Manhattan U.S. attorney Mary Jo White and onetime Justice Department pardon attorney Roger Adams. Several Republicans blasted Holder for not listening to career lawyers and FBI agents on the pardon issue, but their sharp words did not generate major fireworks.

In the only break from his cool, polite demeanor, nearly seven hours into the hearing Holder warned Specter not to question his integrity. "I will not accept that," Holder countered after Specter said he should have known better than to reject recommendations for an independent counsel to investigate Clinton-era fundraising abuses.

"Next to the president of the United States, there is no federal officer more important than the attorney general," Specter said. "The attorney general has an independent duty to the people and to uphold the rule of law."

The issue of independence in that office resonates in part because of findings by the department's inspector general that Bush administration appointees violated personnel laws and packed the civil rights division with conservatives.

Holder said that conduct was "appalling." He said he would closely examine the department's record on civil rights enforcement, which has been criticized by Democrats as weak, but stopped short of saying that a new leadership team would weed out people who had been hired under an illegal process.

Following Obama's lead, Holder frowned on looking backward, saying he was not inclined to yank the legal immunity given to telephone companies that helped the Bush administration eavesdrop on Americans' electronic communications.

Holder avoided directly addressing the possibility that Bush-era officials could face criminal prosecutions for their involvement in wiretapping and interrogation policies. But he quickly followed up by telling lawmakers that, when he called for a "reckoning" last year, he was referring not to indictments but to gathering information. Holder also cited the words of Obama, who has decried calls "to criminalize policy differences where they might exist."

On counterterrorism policies, he said he would "follow the evidence, the facts, the law."

The approach quieted antiwar protesters in the room, who carried signs saying "Prosecute Bush Crimes" and "Torture Is a Crime."

Left-leaning advocates who attended the hearing cheered Holder's statements, even if they were less of a departure from the current administration's policy than the advocates had sought.

"In three words, the world changed, because you stated without hesitation that waterboarding is torture," said Sen. Richard J. Durbin (D-Ill.).

Research editor Alice Crites contributed to this report.

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