At his confirmation hearing yesterday, Eric Holder, Barack Obama's nominee for attorney general, said some reassuring things about the rule of law and the separation of powers:
I will use every available tactic to defeat our adversaries, and I will do so within the letter and the spirit of the Constitution.
Adherence to the rule of law strengthens security by depriving terrorist organizations of their prime recruiting tools. America must remain a beacon to the world….
President-elect Obama and I respect Congress and we respect the federal judiciary. We will carry out our constitutional duties within the framework set forth by the founders and with the humility to recognize that congressional oversight and judicial review are necessary.
All that could be dismissed as boilerplate, except that Holder backed it up with several specific positions. Like Attorney General Michael Mukasey (and unlike John Yoo), he said the president is obligated to obey laws regulating the treatment of suspected terrorists, including the ban on torture. But unlike Mukasey, who bent over backward to avoid answering the question during his confirmation hearing, Holder unambiguously stated that "waterboarding is torture" and therefore illegal.
Also unlike Mukasey, who dodged this question too, Holder said President Bush had no right to ignore the Foreign Intelligence Surveillance Act's warrant requirement for monitoring communications between Americans and people in other countries. Although he deemed Bush's so-called Terrorist Surveillance Program "useful," he said the president should have asked Congress to revise the statute instead of secretly breaking the law. That is pretty much the position taken by Obama, who voted to change FISA so executive branch officials can unliterally authorize surveillance of communications involving people in the U.S. if the ostensible target is believed to be located abroad.
Holder said the Bush administration's military tribunals for suspected terrorists do not provide due process but left open the possibility that they could be tweaked to address that concern. According to A.P., "Holder said the administration was considering prosecuting the detainees in civilian courts, military courts or in some new hybrid court." Is that what we need? Yet another newfangled justice system, bound to be portrayed (probably correctly) as rigged against defendants and guaranteed to be challenged for years?
Another troubling sign: Holder's declaration that "we are at war" with terrorists. Unless it is simply empty rhetoric, the whole point of that formulation is to justify legal short cuts and limits on civil liberties. Sen. Lindsey Graham (R-S.C.) was delighted by Holder's martial metaphor, declaring, "I'm almost ready to vote for you right now." If you worry about perpetual war as an excuse for perpetual constitutional compromises, you may have a different reaction.
The hearing continues today.