Eric Holder Criticized for Claim That "Some Risk" Comes With Civil Liberties Protections


Bill Burck and Dana Perino have written a piece for National Review that unearths a 2004 amicus brief signed by Attorney General Eric Holder that states that civil liberties protections "might impede the investigation of a terrorist offense in some circumstances."

They contrast that claim with President Obama's words that American should reject "the false choice between our security and our ideals" and make a case that Holder is being disingenuous by claiming that trying alleged terrorists in civilian courts won't harm national security.

"It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively," the 2004 brief states. "But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens."

The brief in question discusses, in reference to the Jose Padilla case, whether the president has the legal authority to hold without charges a U.S. citizen captured on American soil, in the manor of an enemy combatant. "It may be true that in some instances the government will not be able to obtain information from citizens who are informed of their right to counsel, or that obtaining that information may be delayed," it states.

"Back then," Burck and Perino write, [Holder] understood that Mirandizing terrorists, to choose one example, is not without risk to our national security."

In the latest salvo in the war of words concerning the Obama administration Justice Department, Republicans are poised to grill Holder on the brief, which a Senate Republican told ABC News was not disclosed before his confirmation hearings. (Here, via Ben Smith, is Holder's disclosure document, which doesn't mention the brief.)