Eric Holder Failed in Defending Americans’ Civil Liberties
Eric Holder Continued Bush Legal Policies
Holder’s inconsistent constitutional legacy
by Lauren Carasik, Al Jazeera
September 30, 2014 6:00AM ET
(H)is support for equality and the rule of law had its limits, including accountability for the nation’s most powerful. Impunity for corporations deemed too big to jail is incompatible with a civil rights agenda that must consider economic justice for communities who bore the brunt of predatory lending and continue to suffer from the financial fallout of other corporate malfeasance. In addition, his failure to prosecute anyone for the Central Intelligence Agency’s brutal interrogation and torture tactics abroad has eroded U.S. credibility on the rule of law.
Holder’s record on civil rights was marred by policies that supported the suppression of civil liberties in the name of the sprawling war on terrorism. The indefinite detention of terrorist suspects in the Guantánamo Bay facility under his watch runs afoul of international norms. He faced significant pushback on his initial proposal of trying Guantánamo detainees in federal courts under the principles of fairness and due process. He has since backed military commissions that many observers say lack legitimacy both domestically and internationally. Even the Navy’s defense counsel for the detainees has called the military justice system at Guantánamo a “Kafka-esque absurdity.” In July, Human Rights Watch and the Columbia University Law School issued a comprehensive report raising alarm about the DOJ’s tactics in investigating, prosecuting and incarcerating American Muslim terrorism suspects. And in August, Maj. Jason Wright, a member of the defense team for alleged 9/11 mastermind Khalid Sheikh Mohammed, resigned from the military, calling the proceedings show trials and criticizing the United States’ “abhorrent leadership” on human rights.
The American Civil Liberties Union and other activist groups denounced a speech that Holder gave at the Northwestern University School of Law in 2012 in which he argued that Barack Obama’s administration had the authority to engage in targeted killings anywhere in the world without judicial review, a critical check on executive power. In May the District of Columbia Court of Appeals upheld deference to the administration in a case brought by the family of U.S. citizen Anwar al-Awlaki, who was killed in a drone attack in Yemen in 2011 after he had been placed on a kill list. Journalist Jason Leopold recently obtained a copy of a DOJ memo about the justification for extrajudicial assassination that was heavily redacted, and the human toll of both intended targets and civilian casualties remains shrouded in secrecy.
The Freedom of the Press Foundation, a nonprofit that supports free speech and freedom of the press, characterized Holder as the worst attorney general on press freedom in a generation. The DOJ has prosecuted more whistleblowers and sources than the combined total from all previous administrations. In United States v. Sterling, the criminal prosecution of former CIA employee and alleged leaker Jeffrey Sterling, the DOJ argued that there is no reporter’s privilege in criminal cases to shield reporter and author James Risen from the obligation to reveal his source for information in a book about a botched CIA operation. The Supreme Court declined to hear Risen’s appeal, leaving the Fourth Circuit ruling against him to stand. Holder has promised that no reporter doing his job would go to jail under his watch. But the DOJ’s aggressive pursuit of journalists threatens to deter future sources, who may understandably fear the confidentiality of their disclosures. In 2013, Holder drew ire for signing off on a warrant to seize Fox News Washington correspondent James Rosen’s private emails, which followed condemnation of the DOJ for seizing the phone records of Associated Press reporters that May. And in a June 19, 2014, letter to Holder, a number of human rights and media advocacy groups asked him to halt the DOJ’s ongoing criminal investigation into WikiLeaks and its leader, Julian Assange, arguing that the specter of criminal liability in this case chills freedom of speech.
Government transparency has fared poorly in other areas as well. In 2008, Obama campaigned on the pledge of reforming the “state secrets” privilege – the legal precedent under which the government may exclude evidence from court proceedings to protect national security. But critics have denounced Holder’s expansive use of this rule to shield government activity from public scrutiny. Obama vowed that his administration would be the most transparent in history, but according to The Associated Press, censorship and denials under the Freedom of Information Act (FOIA) have increased. Though Holder issued new guidance on complying with FOIA requests in 2009, the DOJ’s own report on FOIA requests shows its record is less than stellar.
US bid for secret Gitmo force-feeding hearings challenged
October 1, 2014 12:35PM ET
In a motion filed last Friday, Justice Department lawyers requested that sessions relating to Abu Wa’el Dhiab – a Syrian national held at the detention camp since 2002 – be held in closed court. “An open hearing risks unauthorized disclosure of classified or protected information. The record in this case is large, with classified and protected information often inextricably intertwined with unclassified information,” the department argued.
The secrecy request refers to hearings slated to begin on Oct. 6. Dhiab’s lawyers claim that their client – who has been held without charge for 12 years – has been subjected to abusive tactics to break his hunger strike. This includes forcible cell extraction and painful tube feeding, lawyers say. Medical records also suggest that guards removed Dhiab’s wheelchair as a punitive measure.
The detainee has been approved for resettlement in Uruguay but is refusing food in protest over both his confinement and delays in getting final approval from the U.S. government for his resettlement.
At next week’s hearings, three expert witnesses – bioethicist Dr. Steven Miles, torture specialist Dr. Sondra Crosby and psychiatrist Brig. Gen. (Ret.) Dr. Stephen Xenakis – are scheduled to testify. Crosby and Xenakis have both examined Dhiab at Guantánamo, and in previous filings have described the detainee’s treatment as punitive and a violation of medical ethics, according to Dhiab’s lawyers.
Referring to the attempt by the Obama administration to move sessions pertaining to the client to closed court, Cori Crider, a member of Dhiab’s defense team, said it “smacks of desperation.”
“It’s obvious why the government wants an empty public gallery for the force-feeding trial: embarrassment,” she said, adding: “The government would prefer nobody was around to hear three doctors testify that force-feeding at the base is abusive and an effort to break hunger-strikers’ will. What is happening at Guantánamo today would appall most Americans, and Americans ought to be allowed to hear these witnesses speak.”