FFF: Eric Holder’s Leviathan-Loving Legacy

from the Future of Freedom Foundation

Eric Holder’s Leviathan-Loving Legacy

by James Bovard

Last summer, Attorney General Eric Holder solemnly declared, “The name ought to be changed. It’s an offensive name.” Holder observed that despite the organization’s “storied history,” it could “increase their fan base” by changing their name — “if they did something that from my perspective that is so obviously right.”

Unfortunately, Holder was referring to the name of the Washington football team, not the Justice Department itself. For almost a hundred years critics have rightly scoffed that the executive branch’s most political arm is misnamed and that it is folly to expect justice from the bosses at Main Justice headquarters.

When Holder announced plans to resign after a six-year reign as attorney general, the media showered him with accolades. The New York Times noted that Holder “relished his place in history as the nation’s first African-American attorney general.” In a farewell ceremony at the White House, Holder gushed, “I have loved the Department of Justice ever since, as a young boy, I watched Robert Kennedy prove during the civil rights movement how the department can and must always be a force for that which is right.” In Holder’s view it is safe to trust the Justice Department with practically unlimited arbitrary power as long as noble people such as himself are in command.

Holder championed Barack Obama’s power to assassinate people — including Americans — solely on the basis of the president’s secret decrees. On March 6, 2012, Holder defended presidentially ordered killings: “Due process and judicial process are not one and the same, particularly when it comes to national security. The Constitution guarantees due process; it does not guarantee judicial process.” TV comedian Stephen Colbert mocked Holder: “Trial by jury; trial by fire; rock, paper, scissors, who cares? Due process just means that there is a process that you do.” For Holder and the Obama administration, reciting certain legal phrases in secret memos was all it took to justify extrajudicial executions.

Holder insisted that drone attacks “are not [assassinations], and the use of that loaded term is misplaced; assassinations are unlawful killings … the U.S. government’s use of lethal force in self-defense … would not be unlawful.” The new definition of “lawful killing” had become any termination secretly approved by the president or his top advisers. Holder insisted that targeted killings would take place only when there was “an imminent threat of violent attack against the United States” — that the United States is merely taking desperate defensive steps to prevent a slaughter of American troops or civilians. But, as a Los Angeles Times editorial noted, “Holder defined ‘imminently’ broadly to include action that would head off ‘future attacks.’”

Holder sought to reassure Americans by stressing that Congress was overseeing his boss’s targeted-killing program. But no one on Capitol Hill demanded a hearing or an investigation after U.S. drones killed American citizens in Yemen. The craven attitude in Congress was exemplified by House Homeland Security Chairman Peter King (R-N.Y.): “Drones aren’t evil; people are evil. We are a force of good and we are using those drones to carry out the policy of righteousness and goodness.”

Though Holder had criticized the Bush administration’s warrantless wiretaps before he took office, he became the key defender of the National Security Agency’s email dragnet. After a 2009 Senate Judiciary Committee hearing, Sen. Russell Feingold complained, “I was disappointed by Attorney General Holder’s unwillingness to repeat what both he and President Obama had stated in the past — that President Bush’s warrantless wiretapping program was illegal. For an administration that has repeatedly stated its intention to restore the rule of law, this episode was a step backward.”

Even after Edward Snowden had revealed that the NSA was illegally vacuuming up millions of Americans’ email and other communications, Holder falsely proclaimed in June 2013 that “the government cannot target anyone … unless there is an appropriate and documented foreign intelligence purpose for the acquisition, such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation.” But confidential documents revealed that the NSA’s definition of “terrorist suspect” is so ludicrously broad that it includes “someone searching the web for suspicious stuff.”

Holder was far more enthusiastic about prosecuting whistleblowers than about deterring crimes by federal agencies. The New York Times noted that “Holder’s Justice Department started more investigations than any of his predecessors into government officials who disclosed information to reporters.” The Justice Department used extremely broad subpoenas to vacuum up journalists’ email and phone records and spent years hounding Times reporter James Risen for articles that exposed some of the follies and deceits of U.S. foreign policy.

Holder has continued the tradition of previous attorneys general of exonerating government officials who commit politically approved crimes. Though Obama admitted that U.S. government officials were guilty of torture, the only CIA official that Holder prosecuted was John Kirakou, a courageous whistleblower who publicly admitted that the CIA was waterboarding. Holder is also complicit in the Obama administration’s decision to suppress a massive amount of information about illegal interrogation practices that occurred during the prior administration. Law professor Jonathan Turley commented last December, “Holder and the Justice Department proved as much [torture] enablers as did their predecessors in the Bush administration. Soon after taking office, President Obama shocked many by going to the CIA and assuring employees that, despite his recognition of the torture, no one would be prosecuted. Holder and the Justice Department played as great a role in fulfilling that pledge as Justice did in facilitating the [torture] program itself.”

Loot and killing

Holder was lavishly praised early this year after he announced that the Justice Department would cease sharing some loot seized from Americans with state and local police under the asset-forfeiture program. A Justice Department official, speaking anonymously, said that Holder’s policy shift sought to “eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.” But that was the same incentive that reform advocates condemned in the 1990s and that Holder fought to keep in federal law at the time. In 2009, shortly after he took office, Holder bragged at the Asset Forfeiture National Leadership Conference, “As Deputy Attorney General, it was my privilege to testify before Congress [in 1999] in support of asset- forfeiture legislation. In that testimony, I emphasized the critical role that asset forfeiture plays not only in the fight against illegal drugs, but in the broader fight against other types of crime.” He also stressed to senators at the time that “the Asset Forfeiture Program provides vitally important funding for law enforcement.”

Holder reversed course last month only after a Washington Post exposé proved that his favored program created an incentive for lawmen to wrongfully confiscate property from thousands of innocent Americans. He proposed no compensation to the victims of the seizure frenzy he helped unleash.

Newspapers have also lavished praise on Holder for his declaration this year on Martin Luther King Day about “the troubling reality … that we lack the ability right now to comprehensively track” police shootings across the nation. But there was a law on the books that Congress enacted in 1994 to require attorneys general to collect and publish annual data on “the use of excessive force by law enforcement officers.” Holder, like prior attorneys general, ignored the mandate. And the Justice Department continues covering up killings by federal agents, including a rash of fatal shootings by Border Patrol agents and the FBI killing of 27-year-old Ibragim Todashev during questioning at his Florida apartment in 2013 regarding the Boston Marathon bombing.

Holder’s behavior regarding that attack captured his often boundless arrogance. When Rep. Louis Gohmert of Texas suggested that “the FBI blew the opportunity to save people’s lives” after it interviewed but failed to keep track of accused Boston bomber Tamerlan Tsarnaev, Holder went ballistic: “You don’t know what the FBI did. You don’t know what the FBI’s interaction was with the Russians. You don’t know what questions were put to the Russians, whether those questions were responded to. You simply do not know that. And you have characterized the FBI as being not thorough or taken exception to my characterization of them as being thorough. I know what the FBI did. You cannot know what I know.” And Holder has made sure that members of Congress and mere mortal private citizens don’t know what he knows — and thus he could continue preening as if he and all his agents should be above criticism.

Since Obama was lawfully elected, Holder’s Justice Department has acted as if anything that Obama’s appointees chose to do is automatically legal. Thus, the Equal Employment Opportunity Commission concocted a new rule to punish businesses that refuse to hire ex-convicts. Thus, the Department of Housing and Urban Development devised an arbitrary new standard to punish businesses that fail to give preferential treatment to minorities (a policy that the Supreme Court will very likely strike down later this year). Nor has Holder had any complaints about the White House’s frenetic rewriting of the Affordable Care Act to protect Democratic candidates from an anti-Obama-care backlash.

After Obama himself, Holder bears primary blame for leaving the 2008 promise of “hope and change” in the ruins. Holder’s record is profoundly disappointing to anyone who expected the Obama administration to renounce the abuses of the previous administration. Instead, he has championed a Nixonian-style legal philosophy that presumes that any action the president orders is legal.

This article was published in the May issue of the Future of Freedom.

On Twitter @jimbovard


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