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Holder At War

This column was written by Andrew C. McCarthy.

There was no reason to worry about that stemwinder Eric Holder delivered at the American Constitution Society last June. Sure, he had claimed that Bush national-security measures - the ones that staved off another 9/11 for seven years - were "needlessly abusive and unlawful practices" that "made us less, rather than more, safe." And, okay, he did rail about "torture," "secret electronic surveillance," and measures that "denied the writ of habeas corpus to hundreds of accused enemy combatants." And, yes, the crowd did squeal with delight when he inveighed, "We owe the American people a reckoning." But that was just a bunch of red meat for lefty lawyers, right? No need to take it seriously.

And surely there was no need to fret over those terrorist pardons on Holder's watch: not the FALN thugs, whose organization carried out more than 130 bombings in the United States; and not the two Weather Underground bombers, who were allowed to skip out of their combined century of jail time for waging war against "Amerika." That was all Clinton, Holder fans insisted. Holder's not a pol, he's a law-enforcement pro. He gets the terrorist threat - why, just look at his résumé.

The new attorney general would understand that "we are at war," as he put it during his confirmation testimony. "To be honest," Holder explained, he believed that "our nation didn't realize that we were at war when, in fact, we were." On reflection, when he "look[ed] back" at his tenure helping run the Clinton Justice Department - when he considered "the embassy bombings, the bombing of the Cole" - Holder had to admit that "we as a nation should have realized that, at that point, we were at war. We should not have waited until September the 11th of 2001 to make that determination." Things are different now, though. Holder had come to appreciate that there are dangerous terrorists out there who mean real harm to Americans. He grasped, he said, that those terrorists have to be stopped and captured - even if it means detaining them without trial.

It was an effective performance - emphasis on performance.

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Holder got the job, and that turned out to be a good day for Binyam Mohammed. He was the would-be accomplice of would-be "dirty bomber" (and now convicted terrorist) José Padilla. Mohammed planned to carry out mass-murder attacks in American cities. A succession of three Bush-era attorneys general kept him locked up in accordance with the laws of war, a practice the Supreme Court reaffirmed in its 2004 Hamdi decision. Moreover, military prosecutors believed they had a strong war-crimes case. But Mohammed will not be tried by the military, or by Holder's department. Of course, declining to try him would not be a big deal as long as Mohammed remained incarcerated. After all, as Holder solemnly declared to the Senate.

"If we have a basis to determine that a person is dangerous, and we have evidence that would demonstrate that that person is dangerous, I don't think that, given the Supreme Court decision in Hamdi, and the responsibility that I have as attorney [general] of the United States, should I be confirmed, for the safety of this nation, that that is a person who we can release."

Right. We have plenty of basis and evidence that Mohammed is dangerous. But Holder's sense of "responsibility . . . as attorney general . . . for the safety of this nation" did not stop him from agreeing to Mohammed's release and transfer to England - where he now plots freely while on the British dole.

Naturally, having discerned that all the tough talk was just that, talk, British authorities are back on the administration's doorstep, demanding the release of Shaker Aamer. He's a bin Laden confidant who trained aspiring terrorists at al-Qaeda camps, met with shoe-bomber Richard Reid, and traveled widely in the United States - meeting with embedded terrorists and sharing an apartment with Zacarias Moussaoui (convicted in 2006 for his complicity in the 9/11 plot). Anyone want to bet how that gets resolved?

Meantime, at a press briefing two weeks ago, Holder said he'd been pondering the shuttering of Guantanamo Bay - which is to say, the emerging plan to honor the closure commitment Obama made to the Left simply by springing most of the remaining 240 or so detainees, several of whom are suing the United States courtesy of the free legal help they've gotten over the last several years from Holder's former law firm. Some of these captives, Holder observed, would need to be released in the United States, the better to encourage other nations to join Adopt-a-Binyam.

The detainees, it bears remembering, are aliens affiliated with the global jihad. In the main, they are associated with terrorist organizations and have received paramilitary training. Under federal law, both terror-group membership and terrorist training are grounds for excluding aliens from the United States. That law was enacted in 2005 because of the war Holder says he now realizes we've been in for over a decade. It was enacted because paramilitary courses factored into all those terrorist attacks from the 1990s that "we as a nation" missed the significance of. Holder hasn't explained how turning trained jihadists loose on the infidels that they were training to kill is consistent with his new war mentality (a war in which, at his direction, we no longer call enemy combatants "enemy combatants"). Nor is it clear how this comports with his "responsibility . . . for the safety of this nation" and his obligation to enforce U.S. statutes.

When he is not bravely lecturing Americans about their cowardice on race, our attorney general is running roughshod over his Office of Legal Counsel (OLC) - and shamefully politicizing his Solicitor General's Office - in order to uphold patently unconstitutional legislation, the D.C. Voting Rights Act, that hasn't even been enacted yet. One might have thought, given his purported war epiphany, that Holder would prioritize the valid laws designed to protect Americans from jihadists over the invalid non-laws designed to protect Democrats from losing their congressional majority.

Nevertheless, these detainee hijinks may be the least of our problems with this Marc Rich wheel-greaser who categorically promised the Senate, "The attempt to politicize the department will not be tolerated should I become attorney general of the United States." Holder's political hackery now extends to educating our enemies and laying the groundwork for foreign prosecutions of Bush officials (think of it as outsourcing the "reckoning") -if that's what it takes, as the New York Times put it, "to distance the new administration from the most controversial policies of the Bush years."

Holder has already declassified and made public several Bush OLC memoranda regarding post-9/11 defense measures. (By contrast, he is refusing to disclose his own OLC's reasoning that the D.C. Voting Rights bill is unconstitutional.) Such disclosures badly compromise the Justice Department's interest in promoting sound, apolitical advice. To this point, though, they've been limited to the Bush OLC's legal theorizing, and thus of little practical utility to our enemies. Now, however, Holder apparently is pushing for the release of classified memos that discuss actual interrogation methods.

For all the bombast about detainee abuse since the Abu Ghraib scandal in 2004, only waterboarding has been publicly acknowledged by the intelligence community. The CIA's remaining enhanced techniques remain classified. As the Times elaborates, top current and former intelligence officials are energetically lobbying to keep it that way.

They are being beaten back, however, by Holder and his staffers. Carrying the water for congressional Democrats beholden to the antiwar Left, they would release the memos on the theory that, since President Obama has limited coercion to the benign tactics in the Army Field Manual (AFM), enhanced measures are no longer authorized; thus, the argument goes, there can be no harm in exposing them.

From a national-security perspective, this is absurd. The administration is supposedly studying whether, in emergency circumstances, methods outside the AFM should be authorized. If that is true, it is by no means clear that some of those methods have outlived their usefulness. But even if that were not the case, we know that al-Qaeda and other accomplished terror groups teach interrogation resistance - just as our military subjects some of its own members to waterboarding (despite claims that it is torture) for counter-interrogation training. If we understand we are at war, why would we help our enemies? The point of these intelligence interrogations is to thwart terrorist attacks and save lives. Why would we describe for terrorists the enhanced tactics we have used, knowing they will train against those tactics - secure in the knowledge that, by learning to resist them, they will perfect their ability to defeat the milder methods we are using?

As Holder well knows, tactics do not have to be disclosed in order to ensure that we are behaving humanely. Acting in good faith and with appropriate congressional review, legal and intelligence officials can strike a balance absent a public airing that can only make our enemies more efficient at killing us.

The public airing is strictly about politics. It is about satisfying the insatiable Bush-haters Holder stirred at the American Constitution Society. It is about increasing the likelihood of foreign indictments against Bush officials, to give the Left its "reckoning" while formally honoring the commitment Holder gave Republican senators not to pursue the case himself.

The Binyam Mohammeds go free, while dedicated Americans, who worked night and day to keep this country safe, edge closer to legal peril. Welcome to Holder at War.

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National Review's Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad (Encounter Books, 2008).
By Andrew C. McCarthy
Reprinted with permission from National Review Online

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