Controversy is rampant over US Attorney General Eric Holder’s decision to bring 9/11 masterminds, Khalid Sheikh Mohammad (KSM) and his accomplices, to civil trial in New York City — dodging a military tribunal. Yet, that’s only one facet of the whole story.
The other very major aspect of the KSM trial story is all about the man now responsible for prosecuting the civil case, US. Attorney General Eric Holder.
At one stage of his career, when he was an assistance attorney general for President Clinton, Holder could straddle an issue pretty well. At one moment he was a strong anti-terrorist prosecutor; and at the next, he was a lenient and forgiving counselor advising the President.
It is this apparent lack of personal moral conviction and professional candor that earned him pointed criticism during his January confirmation hearing — and is especially relevant now as he approaches the trial of KSM et. al.
Sen. Cornyn Questions Two Legal Opinions
Texas Sen. John Cornyn was among those who questioned Holder’s confirmation, with the transcript appearing in the Congressional Record and available via GovTrack.us.
Sen. Cornyn began his comments noting that Holder “served as deputy attorney general during the Clinton Administration, and if there is any public service that is more illustrative of how someone will actually perform as attorney general, I think it would be in performing as deputy attorney general.”
On that foundation, the Senator pointed out that two of Holder’s actions (which are relevant in the KSM trial controversy) as deputy attorney general provide grounds for questioning his qualifications for being the US AG. They are:
- The recommendation that President Clinton commute the sentences of 16 Puerto Rican separatist terrorists; and
- The recommendation that President Clinton pardon the billionaire fugitive Marc Rich.
The legal opinions provided to the President in both instances “raised serious questions about Mr. Holder’s judgment and independence from the wishes of his political sponsors — key qualities I would hope the Senate would want for any attorney general: independence, adherence and fidelity only to the rule of law — and good judgment.”
Sen. Cornyn stated that Holder’s recommendations to President Clinton on these two cases demonstrated “a failure to understand the profound threat posed by radical Islamic terrorism…. [characterized by Holder's] misjudgments and shifting opinions with regard to the war on terror.”
Let’s look at the two cases on which then-assistant AG Holder advised President Clinton, and then we’ll look at how his opinions change as his bosses changed.
1. FALN and Los Macheteros
“The FALN was a clandestine terrorist group devoted to bringing about the independence of Puerto Rico through violent means. Its members waged open war on the United States, with more than 150 bombings, arsons, kidnappings, prison escapes, threats and intimidation, which resulted in the deaths of at least six people and injuries to many more between 1974 and 1983.”
“The most gruesome attack was in 1975 in lower Manhattan. Timed to explode during the lunch hour, the bomb decapitated one of the four people killed and injured another 60. In another attack in Puerto Rico, Los Macheteros opened fire on a bus of U.S. sailors. Two American sailors were killed and nine were wounded.”
“In August 1999, President Clinton offered clemency to 16 members of two Puerto Rican separatist terrorist organizations, FALN and Los Macheteros. Deputy Attorney General Eric Holder made the recommendation that he should do so.”
“These unrepentant terrorists … were given clemency by the Clinton administration [even though they] never even petitioned for clemency. They never even asked for it.”
These Presidential actions were, at the time, widely believed to have some political motivation. “Indeed, the Clinton White House discussed how these clemencies would affect then-Vice President Gore’s political standing within the Puerto Rican community.”
Despite this being a fairly material issue, during his confirmation hearing “Mr. Holder has refused to answer some questions… [and] it appears he is invoking executive privilege [to not answer Senate questions]. But it is very odd because this apparent assertion of executive privilege comes despite the fact that President Clinton waived executive privilege for all testimony concerning these commutations [about the Puerto Ricans]….”
“In a letter to the House of Representatives, President Clinton’s lawyer explicitly stated President Clinton “will interpose no executive privilege objections to the testimony of his former staff concerning these pardons, or to other pardons and commutations he granted.”
“Nonetheless, Mr. Holder continues to assert he is not authorized to testify about the so-called options memorandum, which is part of the record underlying these commutations…. Because President Clinton has waived this privilege, this assertion of privilege is apparently now being made by the present administration of President Obama,” Sen. Cornyn stated.
2. Marc Rich Pardon
Sen. Cornyn proceeded and said, “The next concern I have has to do with the Rich pardon … on the very last night of the Clinton administration… at the time [when] Mr. Rich was No. Six on the FBI’s 10 Most Wanted List.”
“In 1983, then-US attorney Rudy Giuliani in the Southern District of New York obtained an indictment of international commodities trader Marc Rich and his business partner, Pincus Green. The indictment charged 65 counts of tax evasion, racketeering and trading with the enemy.
“Specific charges include illegally trading with the Ayatollah Khomeini’s Iranian terrorist regime in violation of US energy laws and a trade embargo against Iran.
“Indeed, Mr. Rich made a fortune trading with the Ayatollah’s regime at the same time that 52 American diplomats were still being held hostage in the US Embassy in Iran. Mr. Rich profited by trading with Cuba, Libya, and South Africa during apartheid — all despite US embargoes. Rather than face these charges head on, Mr. Rich simply fled to Switzerland where he remained a fugitive for 17 years. Federal law enforcement, with help from the CIA, the NSA, and other agencies, expended substantial resources in an effort to apprehend Mr. Rich
“In an effort to avoid his extradition, though, Mr. Rich went so far as to renounce his US citizenship, and he tried to become a citizen of Bolivia. It is hard to imagine a more inappropriate candidate for a pardon than a fugitive from justice accused of trading with the enemy….
“According to those involved in the pardon process, including President Clinton and Marc Rich’s lawyer, Eric Holder was more responsible for this controversial decision than any other member of the Clinton administration with the exception of the President himself….”
“Mr. Holder appears once again to simply have given President Clinton the answer he wanted.”
“The Rich pardon recommendation is the most recent major action by Mr. Holder as a public official. I believe the evidence casts doubt on his independence and his judgment once again. My greatest concerns, however, are that Mr. Holder fails to fully understand the unique challenges and threats posed to our country by radical Islamic terrorism….”
Holder’s Changing Opinions
“I find it especially troubling that Mr. Holder’s legal views on national security have seemed to shift, depending upon the political mood of the day and the audience to whom he is speaking.
“Shortly after the terrorist attacks of 9/11, Mr. Holder voiced support for the Bush administration’s interpretation of the status of terrorist detainees. Mr. Holder said, in January 2002 that al-Qaida terrorists
“‘… are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.’
“He went on to endorse indefinite detention of terrorist prisoners at Guantanamo Bay and argued that such prisoners should not be afforded Geneva Conventions protections so that they could, in fact, be interrogated to provide actionable intelligence.
“He did insist, as did the Bush administration at the time, that these detainees should be treated humanely, though. But more recently, as the political winds have shifted, Mr. Holder has chastised the Bush administration for policies he now seems to believe defy the law.
“There is a disturbing Jekyll-and-Hyde quality to Mr. Holder’s legal pronouncements concerning our counterterrorism policies.
“I wish to quote from an Associated Press article entitled “Obama AG pick defended Guantanamo policy,” dated November 22, 2008. Asked whether terrorism suspects could be held forever, Holder responded:
“’It seems to me that you can think of these people as combatants and we are in the middle of a war.’
“Holder said in a CNN interview in January 2002:
“’And it seems to me that you could probably say, looking at precedent, that you are going to detain these people until the war is over, if that is ultimately what we wanted to do.’
“Just weeks later, Holder told CNN he did not believe al-Qaida suspects qualified as prisoners of war under the Geneva Conventions.
“’One of the things that we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located. Under the Geneva Convention, you are really limited to the amount of information that you can elicit from people.’
“Holder said it was important to treat detainees humanely, but he said they
“’…are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war….’
“Since then, however, these arguments have been heavily criticized, as we know, by human rights activists and leading Democrats,” and Holder’s opinions have changed.
Sen. Cornyn told Congress that Holder “said in June of 2008 that,
“’We must close our detention center at Guantanamo Bay.’
And in a speech to the American Constitution Society. Holder said,
“’A great nation should not detain people, military or civilian, in dark places beyond the reach of law. Guantanamo Bay is an international embarrassment.’”
Sen. Cornyn further stated that “Holder added he never thought he would see the day when
‘‘the Supreme Court would have to order the President of the United States to treat detainees in accordance with the Geneva Convention.’
“These sharply contrasting legal conclusions were made, again inexplicably by one and the same person, Eric Holder, the nominee for the highest law enforcement officer in the United States. One can only wonder what he truly believes,” Sen. Cornyn said.
“In a 2008 speech to the liberal American Constitution Society, he attacked many of the same legal positions he once held as
“‘making a mockery of the rule of law.’”
“In that same speech, Holder called for a ‘reckoning’ over the Bush administration’s ‘unlawful practices in the war on terror.”
And then Holder “accused the Bush administration of ‘act[ing] in direct defiance of Federal law’ and railed against counterterrorism policies that he claimed
“‘violate international law and the United States Constitution.’”
“In this way, Mr. Holder appears to have already publicly prejudged a potential prosecutorial question that may come before him as Attorney General, without knowing all the facts.
“Now, it is one thing to change your mind, but it is quite different to change your mind and then attack the very same position you once held as one that could only be held in bad faith, describing it as ‘making a mockery of the rule of law.’”


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