Obama's Attorney General Under Attack

This week, Attorney General Eric Holder has been dealing with attacks from Republicans about his handling of terrorism detainees. In addition, the conservative National Review magazine unearthed a Supreme Court brief that Holder did not tell Congress about during his confirmation process. The Senate Judiciary Committee's top Republican said Holder must address the issue immediately. Guest host Jacki Lyden talks with NPR's Ari Shapiro.

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JACKI LYDEN, host:

This is WEEKEND EDITION from NPR News. I'm Jacki Lyden.

It's been another rough week for Attorney General Eric Holder. He was already fielding attacks from Republicans for his handling of terrorism detainees. This week, the conservative National Review magazine unearthed a Supreme Court brief that Holder did not tell Congress about during this confirmation process. The Senate Judiciary Committee top Republican said Holder must address the issue immediately.

NPR's Ari Shapiro joins us to discuss the ongoing controversy. Nice to have you in the studio.

ARI SHAPIRO: Thanks, Jacki.

LYDEN: So give us a big picture view of how Eric Holder's doing right now.

SHAPIRO: You know, if you look across President Obama's cabinet, Eric Holder, the attorney general, is the one who more than anyone else is in the conservative crosshairs. There has been an unending series of attacks on his national security decisions. Some of that is because he is taking the lead role in the effort to close Guantanamo, which is very controversial. And some of that frankly is because things keep coming up that provide avenues of attack for Republicans.

LYDEN: So, what exactly is in this Supreme Court brief? What does it have?

SHAPIRO: Well, it was a brief from 2004, the case of Jose Padilla, who was an American detained as an enemy combatant. The case went to the Supreme Court and a bunch of former senior Justice Department officials submitted a brief arguing against President Bush's interpretation of his authority to hold this person indefinitely.

Eric Holder was a former deputy attorney general he was deputy attorney general in the Clinton years - and so he signed on to this brief. And what's interesting is that the brief says: in America, there's a tension between presidential power and liberty and security. He says we can't have unfettered presidential power. And so sometimes, accused terrorists may be acquitted and go free.

And what the two former Bush officials who wrote about this brief in the National Review pointed out is that that's different from what Holder has said as attorney general. As attorney general, he has said we won't release anybody who is a threat to the United States, even if somebody like Khalid Sheikh Mohammed, the alleged 9/11 mastermind, is acquitted in civilian court, he won't go free. And these four Bush officials are saying that's not consistent with what the Supreme Court brief says.

LYDEN: So, since it's already on the record, how is the Justice Department going to explain the brief now?

SHAPIRO: Well, the problem is there were arguably two instances when the Justice Department should have told Congress about this brief and didn't. There was the confirmation process, where Holder gave a list of all the Supreme Court briefs he had signed onto - and this was not included. Then more recently an assistant attorney general sent Congress a list of all of the attorneys at Justice who had worked on detainee issues. This again was not included. The Justice Department says, well, it was just an oversight.

But the senior Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama, is not satisfied with that explanation. He said, the opinions expressed in this brief go to the heart of his responsibilities in matters of national security. Sessions called it an extremely serious matter and said the attorney general will have to address it immediately.

LYDEN: But it seems like some of these people are looking for something. As we discussed, the Justice Department is already under attack, it's very controversial as you know, for hiring attorneys who've represented detainees, which is of course the basic fight.

SHAPIRO: Well, what's interesting about that controversy, about hiring attorneys who worked for detainees, is that when that came up in this ad that was created by conservatives Liz Cheney and Bill Crystal, you saw a lot of very high-profile, very conservative people immediately come to the defense of the Justice Department lawyers who represented detainees, saying that the ad was inappropriate, that it undermined the justice system, that it was shoddy. And there was an immediate blowback from conservatives to that conservative ad attacking Justice Department lawyers.

LYDEN: How might this come to a head?

SHAPIRO: Well, March 23rd, Attorney General Holder is scheduled to testify before Congress. And so a lot of this back and forth that we have seen played out in the media in competing press releases and statements will happen then. And, as one Senate official told me, it may be a long hearing; you should bring snacks.

LYDEN: Ari, any idea how it's playing out inside the attorney general's office, whether it would...

SHAPIRO: It obviously a huge headache for Holder and he doesn't like it. But at the same time, Justice people tell me that there are a lot of initiatives Holder is very involved in that are below national security on the agenda, but that are very important to Holder in a very personal way, and I think he finds solace - for lack of a better word - in his pursuit of those initiatives underneath all the controversy surrounding the national security initiatives.

LYDEN: NPR's Ari Shapiro, thanks so much.

SHAPIRO: Thanks.

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