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Holder Fields Tough Questions in Confirmation Hearing

January 15, 2009 at 6:20 PM EDT
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Attorney General nominee Eric Holder answered questions at his Senate confirmation hearing on wiretapping, defining torture, and his involvement in the Clinton Administration's controversial pardons. Analysts probe the major issues of Holder's hearing.
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JIM LEHRER: And now the Holder confirmation hearings.

Ray Suarez has our report.

RAY SUAREZ: When he appeared before the Senate Judiciary Committee this morning, Eric Holder knew that, to become the nation’s next attorney general, he would have to answer for controversial decisions made during his past service at the Justice Department.

ERIC HOLDER, Attorney general-designate: Now, my decisions were not always perfect. I made mistakes. But with the benefit of hindsight, I can see my errors clearly and I can tell you how I learned from them.

RAY SUAREZ: The most notable of those mistakes involved then-President Clinton’s pardoning of fugitive financier Marc Rich just before leaving office in 2001.

Rich was indicted in 1983 on charges of tax evasion, fraud, and illegal trading with Iran, and fled to Switzerland. When asked, at the last days of the Clinton presidency, for an opinion on the Rich pardon, Holder said he was neutral, leaning toward favorable.

Holder later testified at a congressional hearing to investigate the pardon and said he had made a mistake. But Holder’s admission then did little to stop committee members today from raising the issue again.

Judiciary Chairman Patrick Leahy:

SEN. PATRICK LEAHY, D-Vt., Judiciary committee chairman: How do you respond to those that say the Mark Rich pardon shows you do not have the character to be an independent attorney general? What did you learn from that experience?

ERIC HOLDER: What I have always said was that, given my — given the opportunity to do it differently, I certainly would have.

I should have made sure that everybody — everybody, all the prosecutors in that case, were informed of what was going on. I made assumptions that turned out not to be true. I should have not spoken to the White House and expressed an opinion without knowing all of the facts with regard to that matter.

That was and remains the most intense, most searing experience I have ever had as a lawyer.

RAY SUAREZ: That response was not good enough for the top Republican on the committee, Pennsylvania’s Arlen Specter.

SEN. ARLEN SPECTER, R-Pa., Judiciary committee ranking member: Now, if this were some underling or somebody who wasn’t too bright, or wasn’t too experienced, you would slough it off as a mistake. But given your experience and your background and your competence, and the surrounding circumstance of President Clinton looking for a cover, how do you — how do you explain it beyond simply “It’s a mistake”?

ERIC HOLDER: Well, I don’t mean to minimize what I did by calling it a mistake, or mistakes, in the fact that I take what I did seriously, and I have expressed regret for what I did consistently.

RAY SUAREZ: Holder was also questioned about his role in President Clinton’s decision to grant clemency to 16 members of the Puerto Rican separatist organization FALN. The group was involved in a deadly campaign of bombings and robberies in the 1970s and ’80s.

SEN. JEFF SESSIONS, R-Ala.: Do you believe that the decision and ultimate act of President Clinton to pardon these individuals was wrong?

HOLDER: I think it’s a difficult decision that the president had. When one looks at the nature of the offenses that put those people in jail, these were criminals. These were terrorists. These were bad people. But the president’s determination was that they had not committed any acts themselves that resulted in death or bodily injury.

And on that basis, and given the amount of time that they had served in jail — roughly 16 to 19 years, most, I think, 19 years — and given the length of the sentences that they — they had received, it was his determination that the clemency requests were appropriate, taking all that into consideration.

SEN. JEFF SESSIONS: But do you personally now — I know the president has justified it…

PATRICK LEAHY: Senator…

SEN. JEFF SESSIONS: Do you personally have an opinion after all of this whether it was right or wrong?

ERIC HOLDER: I think that, given all that I have described, that what the president did was reasonable.

'Water boarding is torture'

RAY SUAREZ: Other questions from the committee members dealt with the future. Democrat Herb Kohl of Wisconsin asked Holder to lay out a timeline for when president-elect Obama would close the Guantanamo Bay prison camp.

SEN. HERBERT KOHL, D-Wis.: Many of us were encouraged by press reports which suggest that a change will occur in this next administration. Shortly after taking office, the president-elect will reportedly issue an order to close the prison, but it does remain unclear how this will be done and how long it will take.

ERIC HOLDER: Guantanamo will be closed.

I will tell you this will not be an easy task. The physical closing of the facility is something that can be done relatively quickly. The question is, what will we do with the people who are there now -- roughly, I guess, 250 or so people?

To responsibly close the facility, I think that we have to understand who these people are, make an independent judgment of who they are based on an examination of the records that exist down there, so that we can treat them in an appropriate way.

But I think that review that we will have to go through to figure out who these people are and in what categories they fit will take an extended period of time. And I think that is the thing that will prevent us from closing Guantanamo as quickly as I think we would like.

But I want to assure the American people that Guantanamo will be closed.

RAY SUAREZ: Leahy also questioned the nominee about water-boarding -- or simulated drowning -- which has been used by the CIA as an interrogation technique on terror suspects.

SEN. PATRICK LEAHY: Do you agree with me that water boarding is torture and illegal?

HOLDER: If you look at the history of the use of that technique used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes, we prosecuted our own soldiers for using it in Vietnam.

I agree with you, Mr. Chairman. Water boarding is torture.

RAY SUAREZ: And Charles Schumer of New York wanted to know if Holder could maintain his independence from the president-elect, rattling off a list of past attorneys general and their close ties to the presidents that appointed them.

SEN. CHARLES SCHUMER, D-N.Y.: Let's review for a moment. I have a few quick questions for you.

Have you ever been President-elect Obama's personal lawyer, like William French Smith had been for years for Ronald Reagan?

ERIC HOLDER: No, I have not.

SEN. CHARLES SCHUMER: Have you ever been a staffer to Barack Obama, like Ed Meese had been for President Reagan?

ERIC HOLDER: No, I have not, Senator.

SEN. CHARLES SCHUMER: Have you ever served as official counsel to Barack Obama, like Alberto Gonzales had been for George Bush?

ERIC HOLDER: No, I have not, Senator.

SEN. CHARLES SCHUMER: And, by the way, has Barack Obama ever dispatched you to the hospital room of a sick government official...

SEN. CHARLES SCHUMER: ... to get him to authorize an illegal wiretap program?

ERIC HOLDER: Uh...

SEN. CHARLES SCHUMER: Yeah, I didn't think so.

ERIC HOLDER: No, he has not.

SEN. CHARLES SCHUMER: All right.

And I take it you're not a close relation to the new president, like Bobby Kennedy was to Jack Kennedy?

ERIC HOLDER: No, we're not related by blood, though people do say we look alike.

SEN. CHARLES SCHUMER: I don't think so.

Some question Holder's independence

RAY SUAREZ: Holder also pledged, if confirmed, to restore morale at the Justice Department, rocked in recent years by allegations of politically-motivated hirings and firings during the tenure of Alberto Gonzales.

For more on Eric Holder and some of the controversy surrounding his nomination, we're joined by John Payton, president and director-counsel of the NAACP Legal Defense and Education Fund. He will be testifying on behalf of the nominee. Also with us is Robert Alt, senior legal fellow and deputy director of the Center for Legal and Judicial Studies at the Heritage Foundation.

And, Robert Alt, you have questioned whether, in his career, Eric Holder has demonstrated the kind of judgment, in your words, that make him able to work with the president in a constitutional and appropriate way.

Why?

ROBERT ALT, senior legal fellow and deputy director, Center for Legal and Judicial Studies at the Heritage Foundation: Well, I think -- I think, as you noted from the clips that you showed, a lot of people have been asking questions about independence.

I would say, in fact, you want the attorney general to carry out the policies and the initiatives of the president. And -- and, despite the fact that I may disagree with some of the policies, I want Eric Holder or whoever the next attorney general is to carry out Obama's policies.

The question is, is he going to give President Obama the best advice possible? Is he going to represent the law properly? And a number of the -- the instances that were talked about today, Deputy Attorney General Holder gave what seems to be very bad advice and very political advice.

RAY SUAREZ: John Payton, you're going to testify on Eric Holder's behalf. How do you answer just that charge?

JOHN PAYTON, president and director-counsel, NAACP Legal Defense and Education Fund: I think there were only two instances. And I think Mr. Holder was actually very, very good on why he said what he said, and how he acknowledged in one instance he had made mistakes.

The task before him is really quite enormous, and it is far larger than those two incidents. We have a Department of Justice that is literally in shambles. It has been the subject of countless investigations.

The inspector general's reports, one of which just came out the day before yesterday, is just devastating, and ends with a criminal referral from someone in the Civil Rights Division. The integrity, the independence of the Justice Department, no one is even arguing that this Justice Department had that.

The use of political filters to hire people in the Civil Rights Division is appalling, and no one disagrees with that. So, what the task is before the next attorney general is to literally restore the soul of the Department of Justice.

When you see what Eric Holder's background is, if you watched him through all of today's testimony, not just the little clips we just saw, I think you would see right away why he is the person picked by this president-elect to be the next attorney general.

I think he will definitely bring independence. He showed independence in his judgment in disagreeing and making calls that clearly went against the political interests of President Clinton, whom he served. He's the one who authorized independent counsel in instances. He's the one who authorized an independent counsel of a member of the Cabinet.

He has shown the independence, he has the integrity, and he certainly has the breathtaking legal skills to tackle this job in a way that I think will just be spectacular.

Holder's record is largely positive

RAY SUAREZ: But, just a moment ago, Robert Alt suggested that the independence question isn't the one that we should be asking. Was he, when called upon to make some of these judgments, reliably able to make them well?

JOHN PAYTON: Look, he was -- he was a U.S. attorney. I have heard no criticism -- none whatsoever -- of how he ran the U.S. Attorney's Office when he did that.

He was the deputy attorney general, which has enormous band of authority in the Department of Justice. And the only criticisms that came out were these two things that I think, I agree, it didn't go to his independence. But he has -- he has shown spectacular judgment.

The hearings focus on what hearings focus on. And they go off on little sidetracks all the time. The overall impression that anyone who watched this whole hearing would get is that this is a spectacularly well-qualified lawyer, clearly able to lead the department in the very challenging future that it faces.

RAY SUAREZ: Robert Alt, the nominee spent the entire day today under questioning on many of the issues that you have identified publicly as the ones that give you pause, the FALN clemency, the Marc Rich pardon, his opinion on the D.C. gun law, and many others.

Did he satisfy you in the way he answered those questions?

ROBERT ALT: Well, I have to say, particularly with regard to the FALN terrorism case, he did not.

With Marc Rich, his pardon, he at least took responsibility for it being a mistake. And, yet, when it dime the FALN case, he -- he referred to that decision as reasonable. I just don't see how he could say that.

He violated virtually every DOJ protocol in releasing -- let's be quite clear about how dangerous these individuals were. Two of them refused the deal because they would not renounce future violence against the United States. They didn't ask for clemency.

And, yet, he instructed the pardon attorneys to go and procure from them contrition in order to support the document, which is ultimately what Clinton relied upon in issuing the clemency. This clemency should never have been given. And there is -- was no clear reason, other than potential politics, for doing so.

To call it a lapse of judgment, when you have -- you have got an organization identified as one of the leading domestic terrorism organizations in the United States, is an understatement.

Mistakes irrelevant to job ahead

RAY SUAREZ: Though it should be pointed out that none of the people released were directly involved in these attacks. None of them committed crimes of violence themselves. Does that make any difference to you in...

ROBERT ALT: Well, but, once again, they failed to turn over information about individuals who were still involved in crimes of violence, which ordinarily would be required. They failed to reveal information about over $7.2 million that they had been involved in stealing.

They failed to -- as I said, two wouldn't even take the deal because they failed to renounce future violence against the United States. They had demonstrated no contrition. Two U.S. attorneys who prosecuted them advised against granting clemency. You had victim statements recommending against clemency.

Every conceivable factor pointed against. Some of the people who were investigated about possible clemency had sought elaborate escapes from prison even. This was a -- a colossal misstep.

I should also add there were other mistakes in judgment that he was a part of. You know, while he seems to have taken a relatively light view on terrorists, he -- he instituted a very aggressive program with regard to criminal -- prosecution of corporate criminality, which threw mid-level managers under the bus.

The so-called Holder memo with regard to attorney/client privilege coerced corporations to waive attorney/client privilege, oftentimes for mid-level managers, as well as got them to fail to pay attorney's fees that they were oftentimes contractually obligated to do.

The -- a court recently found that that violated the 6th Amendment rights of these employees.

RAY SUAREZ: We're going to hear a lot more about some of these specific cases in tomorrow's...

JOHN PAYTON: We're going to hear about some of it.

But come back to the main points here. The issue about the clemency and the pardon is not the main business of the Justice Department that he will be running. And he, I thought, did just fine explaining why he took the actions that he did that caused President Clinton to grant the clemency. And he took, I thought, responsibility for what he said were mistakes with respect to Marc Rich.

But the business of the Justice Department, why it is in shambles, isn't about any of that. It's in shambles because it's been infected with illegal political considerations. And we have seen -- look, I represent a civil rights organization, the oldest civil rights law firm in this country. We care deeply that this Department of Justice once again do what it ought to be doing with respect to civil rights and human rights.

RAY SUAREZ: And you have got no hesitation that this is the guy who can do this?

JOHN PAYTON: None at all. And that is putting the Justice Department back together, making sure it has integrity, and restoring the Civil Rights Division. That is the main task before us here.

RAY SUAREZ: John Payton, Robert Alt, thank you both.