By Michael Gerson
Friday, March 19, 2010; A23
Attorney General Eric Holder is controversial on the left for preserving much of the Bush administration's legal structure for conducting the war on terror. He is controversial on the right for overturning portions of that structure in ways that seem both clueless and reckless. But Holder is the most endangered member of the Obama Cabinet for a different reason: Just about everything he has touched has backfired.
The list is oddly impressive. First, there was the decision to release Bush-era interrogation memos and reopen the investigation of CIA interrogators after they had been cleared by career prosecutors. Holder assumed these actions would rally public outrage. Instead, he started a national security debate he has pretty much lost. Seven former CIA directors -- serving under presidents Nixon, Reagan, Bush 41, Clinton and Bush 43 -- sent Holder a letter warning his actions could "help al-Qaeda elude U.S. intelligence and plan future operations." Holder opened a serious, ongoing rift between the Justice Department and the intelligence community.
Second, there was Holder's repudiation in the matter of John Yoo and Jay Bybee, the Bush administration lawyers who provided the legal justification for enhanced interrogations. Holder appointees had determined the two lawyers guilty of professional misconduct. But the Justice Department's senior career attorney cleared Yoo and Bybee of the charge, embarrassing Holder in the process.
Third, there was the handling of the underwear bomber case. It is fortunate that suspect Umar Farouk Abdulmutallab eventually resumed cooperation. It is also evident that Holder's decision to Mirandize him after 50 minutes was hasty and based on minimal consultation with intelligence officials. Holder treated a national security judgment as a purely legal one. Director of National Intelligence Dennis Blair later told Congress: "That unit [the High Value Interrogation Group] was created exactly for this purpose -- to make a decision on whether a certain person who's detained should be treated as a case for federal prosecution or for some of the other means. We did not invoke the HIG in this case; we should have." In fact, Blair was unaware that the High Value Interrogation Group did not yet exist.
Fourth, there is the closing of the prison at Guantanamo Bay and the civilian trial for Khalid Sheik Mohammed and other accused Sept. 11 conspirators in Manhattan. Under Holder's direction, this process has collapsed. There is no serious plan to close Guantanamo. Holder has been unable to articulate reasons some terrorism cases are referred to civilian courts while others are tried in military tribunals. And his groundwork for a "trial of the century" was botched in almost every respect. The White House, having lost faith in Holder's ability to manage terrorism trials, has assumed direct control of the process. Civilian trials for the Sept. 11 terrorists now seem unlikely anywhere in the United States. But backing down on that commitment will have a cost. "If this stunning reversal comes to pass," said Anthony D. Romero, executive director of the American Civil Liberties Union, "President Obama will deal a death blow to his own Justice Department, not to mention American values." While a military trial for KSM would hardly be a mortal blow to American ideals, Holder's initial announcement created a political expectation on the left that may be impossible to fulfill.
Finally, there are the Supreme Court briefs filed by Holder that he failed to disclose to Congress during his confirmation -- likely to be the focus of a congressional oversight hearing in which Holder will testify on Tuesday. Holder's spokesman says this omission was inadvertent. But one of those briefs opposed the detention of Jose Padilla as an enemy combatant, leading Sen. Jon Kyl (R-Ariz.) to wonder, "Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country's most publicized terrorism cases?" Holder's briefs preview his later decisions on the underwear bomber and KSM. Few in Congress or the White House have leapt to defend Holder's convenient omission.
Add to all of this a series of public gaffes. America is a "nation of cowards." The possibility of capturing Osama bin Laden alive "simply does not exist."
Sometimes haplessness can provoke sympathy. But Holder mixes ineptness with self-righteousness. Critics of his questionable choices, he says, "cower." They lack "confidence in the American system of justice."
But there is another possibility. Perhaps Holder's critics -- in Congress, in the country and even within the White House -- just lack confidence in his judgment.