Attorney General Eric Holder: If
the President Does It, Its Legal
By John W. Whitehead
March 18, 2013
I never thought I would see
the day when a Justice
Department would claim that only
the most extreme infliction of
pain and physical abuse
constitutes torture and that
acts that are merely cruel,
inhuman and degrading are
consistent with United States
law and policy, that the Supreme
Court would have to order the
president of the United States
to treat detainees in accordance
with the Geneva Convention,
never thought that I would see
that a president would act in
direct defiance of federal law
by authorizing warrantless NSA
surveillance of American
citizens. This disrespect for
the rule of law is not only
wrong, it is destructive.Eric
Holder, June 2008 speech to the
American Constitution Society
Since the early days of our
republic, the Attorney General (AG)
of the United States has served as
the chief lawyer for the government,
entrusted with ensuring that the
nations laws are faithfully carried
out and holding government officials
accountable to abiding by their
oaths of office to uphold and
defend the Constitution.
Unfortunately, far from holding
government officials accountable to
abiding by the rule of law, the
attorneys general of each successive
administration have increasingly
aided and abetted the Executive
Branch in skirting and, more often
than not, flouting the law
altogether, justifying all manner of
civil liberties and human rights
violations and trampling the
Constitution in the process,
particularly the Fourth Amendment.
No better example is there of the
perversion of the office of the AG
than its current occupant Eric
Holder, who was appointed by
President Obama in 2009. Hailed by
civil liberties and watchdog groups
alike for his pledge to reverse the
disastrous course that we have been
on over the past few years and
usher in a new era of civil
liberties under Obama, Holder has
instead carried on the sorry
tradition of his predecessors, going
to great lengths to justify
egregious government actions that
can only be described as immoral,
unjust and illegal.
Indeed, Holder has managed to
eclipse both John Ashcroft and
Alberto Gonzalez, whose tenures
under George W. Bush earned them
constant reproach by Democrats and
other left-leaning groups for
justifying acts of torture,
surveillance of American citizens
and clandestine behavior by the
government. Holder, however, has
largely been given a free pass by
these very same groups in much the
same way that Obama has. The reason,
according to former Senate
investigator Paul D. Thacker, is
that Obama is a Democrat. And
because he is a Democrat, hes
gotten a pass from many of the civil
liberty and good-government groups
who spent years watching President
Bushs every move like a hawk.
Despite getting a pass from
those who would normally have been
crying foul, during his time as
attorney general, Holder has made
the Constitution screamthat
according to one of his detractors.
The colorful description is apt.
Some of the Justice Departments
(DOJ) greatest hits under Holder
begin and end with his stalwart
defense of the Obama
administrations growing powers,
coming as they do at the expense of
the Constitution.
Moreover, as head of the DOJ,
Holders domain is vast, spanning
several law enforcement agencies,
including the United States Marshals
Service; FBI; Federal Bureau of
Prisons; National Institute of
Corrections; Bureau of Alcohol,
Tobacco, Firearms and Explosives;
Drug Enforcement Administration; and
Office of the Inspector General (OIG),
as well as the U.S. National Central
Bureau for INTERPOL. To say that the
agencies under Holder have struggled
to abide by the rule of law is an
understatement.
The following are just some of
the highlights of the dangerous
philosophies embraced and advanced
by Holder and his Justice
Department.
The military can detain
anyone, including American citizens,
it deems a threat to the country.
Not only has the DOJ persisted in
defending a provision of the
National Defense Authorization Act
that sanctions indefinite detentions
of Americans, but it has also
blasted the federal judge who ruled
the NDAA to be vague and chilling as
overstepping the courts authority
and infringing on Obamas power to
act as Commander in Chief.
Presidential kill lists and
drone killings are fine as
long as the president thinks
someone might have terrorist
connections. Holder has gone to
great lengths to defend Obamas use
of drones to target and kill
American citizens, even on U.S.
soil, as legally justifiable. In
fact, a leaked DOJ memo suggests
that the President has the power to
murder any American citizen the
world over, so long as he has a
feeling that they might, at
some point in the future, pose a
threat to the United States.
The federal government has
the right to seize the private
propertycash, real estate, cars and
other assetsof those suspected of
being connected to criminal
activity, whether or not the suspect
is actually guilty. The
government actually collects
billions of dollars every year
through this asset-forfeiture
system, which it frequently divvies
up with local law enforcement
officials, a practice fully
supported by the DOJ and a clear
incentive for the government to
carry out more of these takings.
Warrantless electronic
surveillance of Americans
telephone, email and Facebook
accounts is not only permissible but
legal. According to court
documents, more Americans have had
their electronic communications
spied on as a result of DOJ orders
for phone, email and Internet
information40,000 people alone in
2011and that doesnt even begin to
take into account agencies outside
Holders purview, terrorism
investigations or requests by state
and local law enforcement officials.
Judicial review is far from
necessary. Moreover, while it is
legal for the government to use
National Security Letters (NSL) to
get detailed information on
Americans finances and
communications without oversight
from a judge, it is illegal to
challenge the authority of the
Justice Department.
Administrative subpoenas or NSLsconvenient
substitutes for court-sanctioned
warrants that require only a
government officials signature in
order to force virtually all
businesses to hand over sensitive
customer informationhave become a
popular method of bypassing the
Fourth Amendment and a vital tool
for the DOJs various agencies.
Incredibly, the DOJ actually sued a
telecommunications company for
daring to challenge the FBIs secret
order, lacking in judicial
oversight, that it relinquish
information about its customers. The
FBI alone has issued more than
300,000 NSLs since 2000.
Due process and judicial
process are not the same. In
one of his earliest attempts to
justify targeted assassinations of
American citizens by the president,
Holder declared in a March 5, 2012
speech at the Northwestern
University School of Law that The
Constitution guarantees due process,
not judicial process. What Holder
was attempting to suggest is that
the Fifth Amendments assurance that
No person shall be deprived of
life, liberty, or property without
due process of law does not
necessarily involve having ones day
in court and all that that
entailsit simply means that
someone, the president for example,
should review and be satisfied by
the facts before ordering someones
death. As one history professor
warned, Insert even a sliver of
difference between due process and
judicial process, and you convert
liberty into tyranny. Holder, sworn
to uphold the laws of the United
States, is the mouthpiece of that
tyranny, and Obama is its
self-appointed judge, jury and
executioner.
Government whistleblowers
will be bankrupted, blacklisted,
blackballed and in some cases
banished. As AG, Holder has
reportedly prosecuted more
government officials for alleged
leaks than all his predecessors
combined. Relying on the World War
I-era Espionage Act, the DOJ has
launched an all-out campaign to
roust out, prosecute, and imprison
government whistleblowers for
exposing government corruption,
incompetence, and greed.
Intelligence analyst Bradley Manning
is merely one in a long line of
so-called enemies of the state to
feel the Obama administrations
wrath for daring to publicly
criticize its policies by leaking
information to the media.
Government transparency is
important unless government
officials are busy, can stonewall,
redact, obfuscate or lie about the
details, are able to make the case
that they are exempt from disclosure
or that it interferes with national
security. As Slate
reports, President Obama promised
transparency and open government. He
failed miserably. Not only has
Holder proven to be far less
transparent than any of his
predecessors, however, but his DOJ
has done everything in its power to
block access to information, even in
matters where that information was
already known. For example, when
asked to explain the Fast and
Furious debacle in which government
operatives trafficked guns to
Mexican drug lords, DOJ
officialsunaware that much of the
facts had already been
revealedresponded with false and
misleading information that violated
federal law. When pressed for
further information, the Justice
Department retracted its initial
response and refused to say anything
more.
When it comes to Wall Street,
justice is not blind. As
revealed in a PBS Frontline
report, the Obama administration has
driven federal prosecutions of
financial crimes down to a
two-decade low, buoyed in its
blindness to corporate corruption by
campaign donations from Wall Street
banks (whom Holder has determined
are too big to prosecute anyhow) and
staffers whose lucrative financial
portfolios came about as a result of
chummy relationships with
financiers. As David Sirota points
outs:
After watching the [PBS]
piece, you will understand that
the word justice belongs in
quotes thanks to an Obama
administration that has made a
mockery of the name of a once
hallowed executive department
Rooted in historical comparison,
it contrasts how the Reagan
administration prosecuted
thousands of bankers after the
now-quaint-looking S&L scandal
with how the Obama
administration betrayed the
presidents explicit promise to
hold Wall Street accountable
and refused to prosecute a
single banker connected to
2008′s apocalyptic financial
meltdown.
Not all suspects should have
the right to remain silent. In
2010, Holder began floating the idea
that Miranda rightswhich require
that a suspect be informed of his
right to remain silentshould be
modified depending on the
circumstances. Curiously, the
Supreme Court is presently reviewing
a case addressing a similar
question, namely whether a suspects
silence equates to an admission of
guilt.
Clearly, its not the
Constitution that Eric Holder is
safeguarding but the power of the
presidency. Without a doubt, Holder
has taken as his mantra Nixons
mantra that When the President does
it, that means it is not illegal.
It may be that the time has come to
create a non-political and
independent Attorney General, one
who would serve the interests of the
public by upholding the rule of law
rather than justifying the whims of
the President.
WC: 1748