Signaling sharp breaks from the Bush administration, Barack Obama’s attorney general nominee declared Thursday that waterboarding is torture and that the U.S. detention facility at Guantanamo Bay will be closed as quickly as possible.
Testifying at his confirmation hearing before the Senate Judiciary Committee, Eric Holder made it clear that the new administration is prepared to roll back several of the most controversial practices of the Bush administration’s prosecution of the war on terrorism.
Through a grueling day-long session, Republicans grilled Holder on a wide range of issues, but none of the questions – and none of Holder’s answers – were compelling enough to derail his nomination at this point.
Holder’s unambiguous answers on torture stood in contrast those given by Michael Mukasey – then President Bush’s attorney general nominee — a year ago, when he repeatedly dodged questions about the legality of waterboarding.
Holder did not. When Judiciary Committee Chairman Patrick Leahy said Thursday that he considered the practice to be torture, Holder did not equivocate. "I agree with you, Mr. Chairman, waterboarding is torture.”
Holder also rejected the argument made by Bush administration officials that the president's power in a national emergency overrode constitutional restrictions.
"No one is above the law," Holder said.
Holder did agree with the Bush administration on one key spying issue – he supports the retroactive lawsuit immunity granted to telecom firms that participated in the warrantless wiretapping program.
Holder says he does not believe that the military commissions process for trying Guantanamo detainees is adequate. And he believes the United States should end the practice of “rendition,” turning over detainees to other countries for interrogation and imprisonment.
"That should not be the policy or practice of our great nation," Holder said.
Holder is also prepared to overhaul the military tribunals currently in place to handle Guantanamo prisoners.
And Holder says he does not believe that the military commissions process for trying Guantanamo detainees is adequate.
"I don't think that the military commissions have in place all the due process requirements that I would like to see them have," Holder said. "They would have to be, I think, substantially revised to provide all the due process that we have as Americans."
Holder’s confirmation hearing was expected to have fireworks because Republicans were gearing up to attack him over his involvement in the 2001 pardon of fugitive financier Marc Rich.
Over the course of his nine-hour hearing, Holder was even keeled, but his temper flared when he was challenged by Sen. Arlen Specter (R-Pa.), Holder’s top critic and the leading Republican on the Judiciary Panel.
Specter questioned Holder on why he objected to the appointment of an independent counsel to investigate alleged fundraising violations by former Vice President Al Gore during the 1990s.
“I think it's so clear that it raises questions about your fitness for the job," Specter said.
Holder finally snapped back.
"You're getting close to the line. You're getting close to questioning my integrity," Holder said. "That is not appropriate. That is not fair."
Specter knew he had scored a point, and Judiciary Chairman Patrick Leahy (D-Vt.) stepped in to defuse the situation.
For the most part, however, Holder confidently echoed Obama’s positions on key justice issues.
He said that Obama intends to close the detention center at Guantanamo Bay, Cuba, but he would not commit to a timetable for doing so.
"Guantanamo will be closed," Holder said in response to a question from Sen. Herb Kohl (D-Wis.). "Steps are being taken as we speak."
Holder, though, warned, "this will not be an eay task."
Roughly 250 detainees remain incarcerated at Guantanamo, and Holder said some of them will be sent to other countries while others will be tried in U.S. courts.
Holder also expressed concerns over "enhanced interrogation techniques" used on detainees, and he committed to resigning from office if he were ever asked to approve a presidential action that, in his view, violated the Constitution. He also said he believes the Army Field Manual guide for interrogations should be applied to all operations — the CIA does not have to follow the more stringent Army interrogation rules.
When Specter got around to discussing the Rich pardon, Holder played down his involvement but admitted some errors.
"My conduct, my actions, in the Rich matter is a place where I made mistakes," Holder said.
Holder called the controversy over the Rich pardon "the most intense, most searing experience I've ever had as a lawyer."
Holder then argued, "as perverse as this sounds, that I will be a better attorney general because I had the Marc Rich experience."
Holder admitted under questioning from Sen. Arlen Specter that he was not fully aware of Rich's record, including allegations of arms dealing, before recommending a pardon to former President Clinton.
After several hours of testimony, the Obama transition team was "very pleased" following the morning session, according to one source. Specter did little damage to Holder with his questions over the Rich pardon, and no other GOP senator went after the nominee.
Sen. Charles Grassley (R-Iowa) also pushed Holder on work his firm did for now indicted Illinois Gov. Rod Blagojevich (D). Holder failed to include the information on his original disclosure form submitted to the committee, and Grassley is expected to focus on this issue when he questions President-elect Obama's pick for attorney general.
And while liberals may be cheering Holder already, he’s not about to make war criminals out of Bush officials.
Sen. Orrin G. Hatch (R-Utah) asked whether Holder would authorize criminal prosecutions of Bush Justice Department lawyers who approved "extraordinary redition" and the warrantless wiretapping of U.S. citizens.
"We don't want to criminalize policy differences that may exist between the outgoing administration" and the incoming Obama administration, Holder said.
Holder's view echoes that expressed by President-elect Barack Obama, who has so far indicated that he is not interested in pursuing such investigations.