Holder, Senators Expected To Clash At Hearing

U.S. Attorney General Eric Holder has had a tense relationship with the Senate Judiciary Committee, and it seems to be getting worse. Republican Senators have attacked Holder for failing to disclose that he signed onto a Supreme Court brief in the case of an American who was held as an enemy combatant during the Bush administration. Holder testifies before the committee on Wednesday.

STEVE INSKEEP, host:

This next report involves a critical detail in the life of any United States attorney general. The head of the Justice Department is overseen by Congress, and many attorneys general have had a difficult relationship with Congress. That includes the current attorney general, Eric Holder, who's had a tense relationship with the Senate Judiciary Committee, which seems to be getting worse over time. Today, Holder testifies before that committee once again.

NPR's Ari Shapiro has this preview.

ARI SHAPIRO: Attorney General Holder last testified before this committee in November. Then, Republicans such as South Carolina's Lindsey Graham attacked him for sending top detainees to civilian court.

Senator LINDSEY GRAHAM (Republican, South Carolina): The big problem I have is that you're criminalizing the war.

SHAPIRO: Holder sent other Guantanamo detainees to military tribunals, and Republicans are still trying to figure out Holder's system for deciding who goes where. His general answer has been it depends.

Attorney General ERIC HOLDER (Department of Justice): We make these decisions on a case-by-case basis.

SHAPIRO: In an interview after November's hearing, Senator Graham seemed frustrated.

Sen. GRAHAM: When I asked him about the difference between civilian criminal justice system and the law of armed conflict, I don't think he gave a very persuasive case.

SHAPIRO: Since then, the White House has been working directly with Senator Graham on these issues, cutting Holder out of the loop. The White House is now poised to overturn Holder's decision and send the alleged 9/11 mastermind, Khalid Sheik Mohammed, to military court.

Officials at the White House don't want to look as though they are undermining Holder. One White House official speaking on background said, the only places you can legally trying KSM in civilian court are New York, Pennsylvania and Virginia. Those are the three places people died on 9/11. There is local opposition to civilian trials in all those places, the White House official said, and Congress is threatening to completely bar funding for civilian detainee trials.

The unstated conclusion: A military trial for KSM is the only choice left. At the Justice Department, a senior official says Holder still believes he made the right decision on KSM given the conditions at the time, but the circumstances changed when New York's mayor and police commissioner dropped their support for a trial in lower Manhattan. Despite these justifications, the whole controversy seems to have undermined Holder's standing.

Jamie Gorelick was deputy attorney general during the Clinton administration, and she says Holder needs to clearly explain his system for determining who gets tried where and why.

Ms. JAMIE GORELICK (Former Deputy Attorney General, Clinton Administration): I am told that the department has a construct and can lay it out. And I would encourage the attorney general to do that.

SHAPIRO: Why hasn't he been able to do that for the last year?

Ms. GORELICK: I don't know the answer to that question. I do know that the focus of the White House on getting health care passed has meant that no other messages from the Justice Department or elsewhere were appreciated during that time, so maybe that has something to do with it.

SHAPIRO: Since this is Washington, there's also a political aspect to the debate. George Terwilliger was deputy attorney general under the first President Bush. He also represented former attorney general Alberto Gonzalez during the Senate Judiciary Committee's investigation of whether Gonzalez lied under oath.

Mr. GEORGE TERWILLIGER (Former Deputy Attorney General, George H. W. Bush Administration): And one can't delve into the depths of that and not conclude objectively that much of that debate became overly politicized about a wide range of subjects. That's not good for the administration of justice, it's not good for the effectiveness of our counterterrorism program, and it just isn't a good way to run a government.

SHAPIRO: Terwilliger says it's good for Attorney General Holder and senators to passionately express their differences of opinion at this morning's hearing. But he says once the goals becomes scoring political points, that's counterproductive.

Ari Shapiro, NPR News, Washington.

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