Scrutinizing Holder's Actions on Guantanamo — And Beyond

This week the Washington Post revealed that Holder had overridden the legal finding of the Office of Legal Counsel (OLC), which determined that the legislation to provide voting rights for the District of Columbia was unconstitutional. Conservative critics were quick to point out that it was just this sort of political arm-twisting of career attorneys which brought scorn upon (and eventually the resignation of) George W. Bush's attorney general, Alberto Gonzales. And it suggested that Holder's promises during his confirmation hearing that he would maintain his  "independence" were empty. As Ed Whelan, former deputy of OLC, explained:

At his recent confirmation hearing, a chastened Holder assured senators that he had learned from the past and was committed to upholding the department's high standards. He specifically promised not to politicize DOJ's legal positions: "We don't change OLC opinions simply because a new administration takes over," he said. Any review "will not be a political process, it will be one based solely on our interpretation of the law."

Well that what then, and this is now. And now his conduct has given even the Washington Post editors "pause" and spurred their call for release of all the relevant memos and opinions. Perhaps he will do so, but this is not an administration that has been easily moved to change course, especially when conservative critics are leading the charge. So where does this leave us?

Perhaps it is time for Congress to step up to the plate.While Holder may have pulled a fast one in the confirmation hearing, there is no reason for Congress to compound its error. What is sorely lacking here, both on the detainee issue and on D.C. voting rights, is congressional oversight. Sessions deserves praise for firing off a letter on the release of detainees. And Sen. John Cornyn likewise gets kudos for his own letter demanding the OLC's legal opinion on D.C. voting rights. But there is no substitute for a public hearing and sharp questioning of Holder. There is nothing quite so illuminating, as we learned during the Bush years, as watching the attorney general explain what he is up to and whether he is actually fulfilling his role as legal watchdog, rather than political enabler.

Under the Bush administration, Sens. Patrick Leahy and Chuck Schumer would be certain to drag the attorney general in front of the cameras and start hammering away at the first hint that he had given insufficient attention to career attorneys' legal research or neglected legal restrictions on the government's policy objectives. But now they have zero interest in quizzing the Democratic administration's top lawyer. Some public pressure might be brought to bear on them, but they are unlikely to be swayed by pleas for them to fulfill their Constitutional obligations. So where are the Republicans?

Arlen Specter, ranking minority leader on the Judiciary Committee, has not spoken up about any of this. Emails from this reporter first to his Senate office and then to the communications director for the Judiciary Committee asking for comment  and inquiring whether he intends to seek a hearing have not yet elicited any response. (The former was polite enough to direct me to the latter which remains mute.) But then Specter wound up voting to confirm Holder, so it might be uncomfortable for him to underscore that he was snookered by Holder's promises of independence.

Republicans, however, are not without procedural tools to demand proper congressional oversight. They could well hold up the controversial nomination of Dawn Johnsen to head the OLC, as well as other Justice Department nominees, until they get a full accounting of Holder's interaction with staff attorneys and an explanation as to how he seriously he is taking his obligations to examine the legality of the administration's actions.

For now, we are left to ponder whether Holder is serving up just what the administration wants to hear (as was alleged in his role in controversial Clinton-era pardons) or whether he really is the man of integrity his supporters claimed him to be. Right now the available evidence suggests he is a compliant figure uninterested in providing objective legal advice and constitutional discipline for an administration badly in need of both.