Hearings Continue For Obama's AG Pick

Attorney General-designate Eric Holder says "waterboarding is torture." He spoke about it at his confirmation hearing Thursday. The Senate Judiciary Committee is expected to hear from other witnesses Friday.

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In Washington, many thought that Eric Holder, the attorney general-designate, would face a tough confirmation hearing, but when he appeared before a Senate committee yesterday, he acknowledged some past mistakes and appeared to defuse much of the potential criticism. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Republicans had a few stern questions, but for the most part, they seemed impressed. Some of that may be because so many Republicans in law enforcement have endorsed Holder, including ones who disagreed with him about controversial pardons. And some may be because Republicans, too, are tired of being stiffed by the Bush administration. If what most senators wanted was a new day, they got it right out of the starting gate, when Chairman Patrick Leahy asked about waterboarding, the interrogation technique of controlled drowning begun in the Spanish Inquisition and authorized for use against some terror suspects after 9/11 by the Bush administration.

(Soundbite of confirmation hearing, January 15, 2009)

Senator PATRICK LEAHY (Democrat, Vermont; Chair, Senate Committee on the Judiciary): Do you agree with me that waterboarding is torture and illegal?

Mr. ERIC H. HOLDER JR. (Appointee, Attorney General, Barack Obama Administration; Former Deputy Attorney General, William Clinton Administration): We prosecuted our own soldiers for using it in Vietnam. I agree with you, Mr. Chairman, waterboarding is torture.

TOTENBERG: And can the president override laws and treaties against torture?

Mr. HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States.

TOTENBERG: Republicans focused on two controversial pardons that Holder was involved in as deputy attorney general in the Clinton administration. His position on the pardon of fugitive financier Marc Rich, he said, was a mistake. He told the Clinton White House he was neutral, leaning towards favorable. Holder said he'd been unaware that Rich's ex-wife had given hundreds of thousands of dollars to the Democratic Party, but more important, he said he did not know the details of the charges against Rich.

Mr. HOLDER: That was one of the mistakes I made. I did not acquaint myself in a way that I should have about all that existed in the files about Mr. Rich. I think if I had done that, I would have come up with a different determination.

TOTENBERG: Holder, however, did not back away from his recommendation of a pardon for Puerto Rican nationals convicted of terrorism-related crimes. The men, he noted, had served almost 20 years. Their pardon was supported by leading religious figures, and their sentences were out of whack with other sentences for similar crimes.

Mr. HOLDER: They did not directly harm anyone. They were not responsible directly for any murders. But I think another factor is that we deal with a world now that is different than the one that existed then. That decision was made in a pre-9/11 context. I don't know what President Clinton would do now. I tend to think that I would probably view that case in a different way in a post-9/11 world.

TOTENBERG: Ranking Republican Arlen Specter questioned Holder about his decision not to recommend appointment of a special prosecutor to investigate then-Vice President Al Gore's fundraising. Holder acknowledged that it gave him pause when the FBI director and a top career lawyer recommended such an appointment, but he said he thought the career lawyers in the public-integrity section were correct in recommending against it. Senator Specter was not satisfied.

Senator ARLEN SPECTER (Republican, Pennsylvania; Ranking Republican, Senate Committee on the Judiciary): My evaluation is that a man in your position knew better. That's the whole point. But you've expressed yourself, and I've expressed myself...

Mr. HOLDER: Senator, we're getting close to a line here. I will certainly understand a difference of opinion, but you're getting close to questioning my integrity, and that is not appropriate. That's not fair. It's not fair, and I will not accept that.

TOTENBERG: That, however, was a momentary dust-up. Civility, even humor, was the hallmark of the day, as when Senator Herb Kohl, who just happens to own the Milwaukee Bucks, suggested Holder should take on President-elect Barack Obama on the basketball court. Holder responded this way.

Mr. HOLDER: He's 10 years younger than me.

(Soundbite of laughter)

Mr. HOLDER: He plays a lot more frequently than I do. Having said that, I've got a New York City game.

(Soundbite of laughter)

Mr. HOLDER: I come from the city that produced Connie Hawkins, Kareem Abdul-Jabbar, Nate "Tiny" Archibald. I learned how to play ball in P.S. 127 in Queens. If you give me a little time and a little space to get back in shape, I think I could hang with him.

(Soundbite of laughter)

Mr. HOLDER: I don't think I'm ever going to be in a position to beat him, nor do I think that would be a wise thing to do.

(Soundbite of laughter)

TOTENBERG: Nina Totenberg, NPR News, Washington.

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Holder Says He'll Jettison Bush-Era Practices

Eric Holder, President-elect Barack Obama's choice for attorney general, was questioned sharply Thursday about his role in President Clinton's controversial last-minute pardon of fugitive financier Marc Rich and his push for clemency for 16 radical Puerto Rican nationalists.

But during his daylong hearing before the Senate's Judiciary Committee, Holder, a former judge who served as deputy attorney general in the Clinton administration, remained largely unflappable. He made clear that if confirmed, he would work quickly to remake the embattled and demoralized Justice Department and jettison practices of his Bush administration predecessors.

Rejecting Bush Policies On Interrogation

Under questioning, Holder said he would classify "waterboarding" as torture and move to bar the controversial interrogation practice, during which detainees are subjected to simulated drowning. In an intense back-and-forth with Republican Sen. John Cornyn of Texas over the issue, Holder reiterated his opposition to the technique, even if questioning a suspect who could possess information about an impending attack — what Cornyn characterized as a "ticking time bomb" situation.

Holder said that interrogators have other weapons in their arsenals, and he cast doubt on whether a technique like waterboarding actually produces reliable results. "People will say almost anything to avoid torture," Holder said.

What if the use of waterboarding would help you save tens of thousands of people, Cornyn asked. "It's hard for me to answer your hypothetical without accepting your premise," Holder said. "The premise that underlies that, I'm not willing to accept. I don't think I can do that."

Holder also stated his objection to "rendition," the practice of handing over detainees to countries where they could be subjected to mistreatment or torture. And he reiterated his support for closing the Guantanamo Bay detention camp and said that the process of trying detainees by military commission would either be abandoned in favor of using military or civilian courts or "substantially revamped" to reflect U.S. standards of due process.

"I want to assure you, the American people, and the world: Whatever system we use will be consistent with our values," he said, including the right to due process. "It will be fair."

"We are going to have to come up with American solutions" to the thorny issues surrounding how to fairly treat and try suspected terrorists, he said, while bearing in mind that one of the battlefields in the war on terrorism is for the hearts and minds of people in the Islamist world.

"These are not Republican and Democratic issues," Holder said. "How do we deal in an appropriate way with someone we know is a danger to this country, yet be true to our values?"

A Justice Department Overhaul

Holder, the first African-American tapped to be the nation's top lawman, also assured Democratic senators that he would look into whether legal action should be taken against the former head of the Justice Department's civil rights division.

An inspector general's report released this week cited Bradley Schlozman for discriminating against liberal lawyers, violating civil service laws and lying to Congress. Holder called the report "very disturbing. ... It's antithetical to everything the department stands for." Holder said that if confirmed, he would review a decision by the U.S. attorney's office in Washington not to pursue charges against Schlozman.

Holder and many of the committee's questioners — including GOP Sen. Lindsey Graham of South Carolina — sought to focus on the future and how Obama's pick would deal with the pressing legal and moral issues facing the nation. Nonetheless, Holder's time in the Clinton administration as deputy to Attorney General Janet Reno remained a significant aspect of the day's high-profile hearing.

Discussion about the Justice Department's failure in 1996 to name a special prosecutor to look into then-Vice President Al Gore's White House fundraising activities led to the most confrontational exchange of the day. Ranking Republican member Arlen Specter of Pennsylvania, in pushing Holder about whether the decision showed favoritism to Gore, said that it raised questions about the nominee's "fitness for the job."

Holder confronted Specter forcefully. "You're getting close to questioning my integrity," Holder said. "That's not appropriate and that's not fair and I won't accept that." He asserted that there was "never any attempt" on the part of career lawyers or himself to render a decision that favored Gore.

Responded Specter, who earlier had been bickering with Leahy over how much time remained for questions: "You're telling me what you think about it, and I'm telling you what I think about it."

Grilled Over The Marc Rich Pardon

Holder had anticipated rough questioning from Specter. In his opening statement, Holder acknowledged the error of his actions as deputy attorney general in the Clinton administration when the Rich pardon issue came his way. He called the fallout from his tacit support of the clemency one of the most "intense, searing experiences" he has had as a lawyer.

"I made mistakes," Holder said. "I've never said anything but that."

Rich's ex-wife, Denise, was a major Clinton donor. At the time of the pardon, Rich was on the lam in Switzerland, in an attempt to avoid dozens of tax evasion and fraud charges as well as charges of making illegal oil deals with Iran during the 1970s hostage crisis. Holder told the White House he was "neutral, leaning towards favorable" on the Rich pardon, which Clinton granted hours before he left office in 2001.

Specter said that given Rich's notoriety and unsavory background, it was difficult to accept that a high-level law professional like Holder could have failed to recognize the importance of the pardon request.

"Given the background of this man, it's hard to brush it off as a mistake," Specter said. "The guy had a reprehensible record. The guy was a fugitive."

Holder suggested that he did not intend to minimize his actions by characterizing them as a "mistake."

"I take what I did seriously," he said.

Clemency For Violent Puerto Rico Nationalists

Holder later defended his role in seeking clemency for 16 members of two violent Puerto Rican groups involved in bombings and robberies. When pressed by Cornyn to explain why he advocated clemency for prisoners who didn't request it — including four radicals who robbed a Wells Fargo branch of $7.2 million — Holder said the decision was made in a "pre-9/11 world" and hinged on his assessment that the prisoners had served long enough.

"These were people who had served an extended period of time, who did not directly harm anyone, who did not directly murder anyone," Holder said. Faced with a similar situation today, Holder says he may view it differently. "Hindsight is always 20/20," he said.

At the time of the clemency offers, Hillary Clinton was running for Senate in New York, which has a sizable Puerto Rican community.

Under earlier questioning by Republican Sen. Orrin Hatch of Utah, who had already indicated he will vote in favor of the nominee, Holder said that he considers a recent U.S. Supreme Court decision that asserts the right of Americans to own guns to be the "law of the land" — one that he would be obligated to uphold.

"In the ballgame that we call our judicial system," he said, "the Supreme Court gets to be the umpire." He subsequently stated that he would, however, seek to close gun show loopholes that allow the sale of firearms between private individuals, and ban the sale of so-called cop killer bullets.

A Stage Set For Confrontation

Thursday's hearing was expected to offer the toughest questioning of any of President-elect Barack Obama's top nominees.

When he took center stage, Holder invoked the historic significance of the occasion. He mentioned not only his father, who at age 12 came to the U.S. from Barbados, but also the legacy of the Rev. Martin Luther King Jr. Thursday was the slain civil rights leader's birthday.

Anticipating a grilling to come at the hands of committee Republicans, he acknowledged what he called his mistakes of the past and insisted that he has learned from them.

"My decisions were not always perfect. I made mistakes," Holder said of his time as deputy attorney general. "I hope enough of my decisions were correct."

"But with the benefit of hindsight, I can see my errors clearly, and I can tell you how I have learned from them," he told the committee.

"The Department of Justice first and foremost represents the people of the United States," he said. "Not any one president, not any political party, but the people."

He mentioned two cases that he says spoke to his ability to challenge his own party and the president he served: his prosecution as U.S. attorney of former powerful Illinois Rep. Dan Rostenkowski and his recommendation as deputy attorney general that special counsel Kenneth Starr expand his investigation of President Clinton in the Monica Lewinsky matter.

Holder's hearing will continue Friday, when the committee will hear from seven witnesses. Scheduled to appear on behalf of Holder are Louis Freeh, former FBI director; Chuck Canterbury, president of the National Fraternal Order of Police; John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund; and Frances Fragos Townsend, former homeland security adviser to President Bush. Those invited by Republican senators to testify are Richard Hahn, an FBI special agent who investigated the Puerto Rican radical groups; Joseph Connor, whose father was killed in a 1975 bombing in New York City tied to one of the groups; and Stephen Halbrook, a Virginia lawyer and gun advocate.

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