Obama doesn't want to look back, but Attorney General Eric Holder may probe Bush-era torture anyway.
NEWSWEEK
It's
the morning after Independence Day, and Eric Holder Jr. is feeling the
weight of history. The night before, he'd stood on the roof of the
White House alongside the president of the United States, leaning over
a railing to watch fireworks burst over the Mall, the monuments to
Lincoln and Washington aglow at either end. "I was so struck by the
fact that for the first time in history an African-American was
presiding over this celebration of what our nation is all about," he
says. Now, sitting at his kitchen table in jeans and a gray polo shirt,
as his 11-year-old son, Buddy, dashes in and out of the room, Holder is
reflecting on his own role. He doesn't dwell on the fact that he's the
country's first black attorney general. He is focused instead on the
tension that the best of his predecessors have confronted: how does one
faithfully serve both the law and the president?
Alone among
cabinet officers, attorneys general are partisan appointees expected to
rise above partisanship. All struggle to find a happy medium between
loyalty and independence. Few succeed. At one extreme looms Alberto
Gonzales, who allowed the Justice Department to be run like Tammany
Hall. At the other is Janet Reno, whose righteousness and folksy
eccentricities marginalized her within the Clinton administration. Lean
too far one way and you corrupt the office, too far the other way and
you render yourself impotent. Mindful of history, Holder is trying to
get the balance right. "You have the responsibility of enforcing the
nation's laws, and you have to be seen as neutral, detached, and
nonpartisan in that effort," Holder says. "But the reality of being
A.G. is that I'm also part of the president's team. I want the
president to succeed; I campaigned for him. I share his world view and
values."
These are not just the philosophical musings of a new
attorney general. Holder, 58, may be on the verge of asserting his
independence in a profound way. Four knowledgeable sources tell
NEWSWEEK that he is now leaning toward appointing a prosecutor to
investigate the Bush administration's brutal interrogation practices,
something the president has been reluctant to do. While no final
decision has been made, an announcement could come in a matter of
weeks, say these sources, who decline to be identified discussing a
sensitive law-enforcement matter. Such a decision would roil the
country, would likely plunge Washington into a new round of partisan
warfare, and could even imperil Obama's domestic priorities, including
health care and energy reform. Holder knows all this, and he has been
wrestling with the question for months. "I hope that whatever decision
I make would not have a negative impact on the president's agenda," he
says. "But that can't be a part of my decision."
Holder is not
a natural renegade. His first instinct is to shy away from
confrontation, to search for common ground. If he disagrees with you,
he's likely to compliment you first before staking out an opposing
position. "Now, you see, that's interesting," he'll begin, gently. As a
trial judge in Washington, D.C., in the late 1980s and early '90s, he
was known as a tough sentencer ("Hold-'em Holder"). But he even managed
to win over convicts he was putting behind bars. "As a judge, he had a
natural grace," recalls Reid Weingarten, a former Justice Department
colleague and a close friend. "He was so sensitive when he sent someone
off to prison, the guy would thank him." Holder acknowledges that he
struggles against a tendency to please, that he's had to learn to be
more assertive over the years. "The thing I have to watch out for is
the desire to be a team player," he says, well aware that he's on the
verge of becoming something else entirely.
When Holder and his
wife, Sharon Malone, glide into a dinner party they change the
atmosphere. In a town famous for its drabness, they're an attractive,
poised, and uncommonly elegant pair—not unlike the new first couple.
But they're also a study in contrasts. Holder is disarmingly grounded,
with none of the false humility that usually signals vanity in a
Washington player. He plunges into conversation with a smile, utterly
comfortable in his skin. His wife, at first, is more guarded. She grew
up in the Deep South under Jim Crow—her sister, Vivian Malone Jones,
integrated the University of Alabama—and has a fierce sense of right
and wrong. At a recent dinner in a leafy corner of Bethesda, Malone
drew a direct line from the sins of America's racial past to the abuses
of the Guantánamo Bay detention center. Both are examples of "what we
have not done in the face of injustice," she said at one point, her
Southern accent becoming more discernible as her voice rose with
indignation. At the same party, Holder praised the Bush administration
for setting up an "effective antiterror infrastructure."
Malone
traces many of their differences to their divergent upbringings. "His
parents are from the West Indies..he experienced a kinder, gentler
version of the black experience," she says. Holder grew up in East
Elmhurst, Queens, a lower-middle-class neighborhood in the shadow of
New York's La Guardia Airport. The neighborhood has long been a
steppingstone for immigrants, but also attracted blacks moving north
during the Great Migration. When Holder was growing up in the 1950s,
there were fewer houses—mostly semi-detached clapboard and brick homes,
like the one his family owned on the corner of 101st Street and 24th
Avenue—and more trees. Today the neighborhood is dominated by Mexican,
Dominican and South Asian families, with a diminishing number of West
Indians and African-Americans.
As we walk up 24th on a recent
Saturday, Holder describes for me a happy and largely drama-free
childhood. The family was comfortable enough. His father, Eric Sr., was
in real estate and owned a few small buildings in Harlem. His mother,
Miriam, stayed at home and doted on her two sons. Little Ricky, as he
was known, was bright, athletic, and good-natured. As we walk past the
baseball diamond where Holder played center field, he recalls how he
used to occasionally catch glimpses of Willie Mays leaving or entering
his mansion on nearby Ditmas Boulevard. Arriving at the basketball
courts of PS 127, Holder bumps into a couple of old schoolyard buddies,
greets them with a soul handshake and falls into an easy banter,
reminiscing about "back in the day" when they dominated the hardcourt.
"Ancient history," says Jeff Aubry, now a state assemblyman. "When gods
walked the earth," responds Holder, who dunked for the first time on
these courts at age 16.
Holder doesn't dispute the idea that his
happy upbringing has led to a generally sunny view of the world. "I
grew up in a stable neighborhood in a stable, two-parent family, and I
never really saw the reality of racism or felt the insecurity that
comes with it," he says. "That edge that Sharon's got—I don't have it.
She's more suspicious of people. I am more trusting." There's a pause,
and then, with a weary chuckle, one signaling gravity rather than
levity, Holder says, "Lesson learned." And then adds, under his breath:
"Marc Rich."
The name of the fugitive financier pardoned—with
Holder's blessing—at the tail end of the Clinton administration still
gnaws at him. It isn't hard to see why. As a Justice Department lawyer,
Holder made a name for himself prosecuting corrupt politicians and
judges. He began his career in 1976, straight out of Columbia Law
School, in the Justice Department's Public Integrity Section, where
prosecutors are imbued with a sense of rectitude and learn to fend off
political interference. And though Holder has bluntly acknowledged that
he "blew it," the Rich decision haunts him. Given his professional
roots, he says, "the notion that you would take actions based on
political considerations runs counter to everything in my DNA." Aides
say that his recent confirmation hearings, which aired the details of
the Rich pardon, were in a way liberating; he aspires to no higher
office and is now free to be his own man. But his wife says that part
of what drives him today is a continuing hunger for redemption.
When
I ask Malone the inevitable questions about Rich, she looks pained. "It
was awful; it was a terrible time," she says. But she also casts the
episode as a lesson about character, arguing that her husband's
trusting nature was exploited by Rich's conniving lawyers. "Eric sees
himself as the nice guy. In a lot of ways that's a good thing. He's
always saying, 'You get more out of people with kindness than
meanness.' But when he leaves the 'nice guy' behind, that's when he's
strongest."
Any White House tests an attorney general's strength.
But one run by Rahm Emanuel requires a particular brand of fortitude. A
legendary enforcer of presidential will, Emanuel relentlessly tries to
anticipate political threats that could harm his boss. He hates
surprises. That makes the Justice Department, with its independent
mandate, an inherently nervous-making place for Emanuel. During the
first Clinton administration, he was famous for blitzing Justice
officials with phone calls, obsessively trying to gather intelligence,
plant policy ideas, and generally keep tabs on the department.
One
of his main interlocutors back then was Holder. With Reno marginalized
by the Clintonites, Holder, then serving as deputy attorney general,
became the White House's main channel to Justice. A mutual respect
developed between the two men, and an affection endures to this day.
(Malone, a well-regarded ob-gyn, delivered one of Emanuel's kids.)
"Rahm's style is often misunderstood," says Holder. "He brings a rigor
and a discipline that is a net plus to this administration." For his
part, Emanuel calls Holder a "strong, independent attorney general."
But Emanuel's agitated presence hangs over the building—"the wrath of
Rahm," one Justice lawyer calls it—and he is clearly on the minds of
Holder and his aides as they weigh whether to launch a probe into the
Bush administration's interrogation policies.
Holder began to
review those policies in April. As he pored over reports and listened
to briefings, he became increasingly troubled. There were startling
indications that some interrogators had gone far beyond what had been
authorized in the legal opinions issued by the Justice Department,
which were themselves controversial. He told one intimate that what he
saw "turned my stomach."
It was soon clear to Holder that he
might have to launch an investigation to determine whether crimes were
committed under the Bush administration and prosecutions warranted. The
obstacles were obvious. For a new administration to reach back and
investigate its predecessor is rare, if not unprecedented. After having
been deeply involved in the decision to authorize Ken Starr to
investigate Bill Clinton's affair with Monica Lewinsky, Holder well
knew how politicized things could get. He worried about the impact on
the CIA, whose operatives would be at the center of any probe. And he
could clearly read the signals coming out of the White House. President
Obama had already deflected the left wing of his party and human-rights
organizations by saying, "We should be looking forward and not
backwards" when it came to Bush-era abuses.
Still, Holder
couldn't shake what he had learned in reports about the treatment of
prisoners at the CIA's "black sites." If the public knew the details,
he and his aides figured, there would be a groundswell of support for
an independent probe. He raised with his staff the possibility of
appointing a prosecutor. According to three sources familiar with the
process, they discussed several potential choices and the criteria for
such a sensitive investigation. Holder was looking for someone with
"gravitas and grit," according to one of these sources, all of whom
declined to be named. At one point, an aide joked that Holder might
need to clone Patrick Fitzgerald, the hard-charging, independent-minded
U.S. attorney who had prosecuted Scooter Libby in the Plamegate affair.
In the end, Holder asked for a list of 10 candidates, five from within
the Justice Department and five from outside.
On April 15 the
attorney general traveled to West Point, where he had been invited to
give a speech dedicating the military academy's new Center for the Rule
of Law. As he mingled with cadets before his speech, Holder's aides
furiously worked their BlackBerrys, trying to find out what was
happening back in Washington. For weeks Holder had participated in a
contentious internal debate over whether the Obama administration
should release the Bush-era legal opinions that had authorized
waterboarding and other harsh interrogation methods. He had argued to
administration officials that "if you don't release the memos, you'll
own the policy." CIA Director Leon Panetta, a shrewd political
operator, countered that full disclosure would damage the government's
ability to recruit spies and harm national security; he pushed to
release only heavily redacted versions.
Holder and his aides
thought they'd been losing the internal battle. What they didn't know
was that, at that very moment, Obama was staging a mock debate in
Emanuel's office in order to come to a final decision. In his address
to the cadets, Holder cited George Washington's admonition at the
Battle of Trenton, Christmas 1776, that "captive British soldiers were
to be treated with humanity, regardless of how Colonial soldiers
captured in battle might be treated." As Holder flew back to Washington
on the FBI's Cessna Citation, Obama reached his decision. The memos
would be released in full.
Holder and his team celebrated
quietly, and waited for national outrage to build. But they'd
miscalculated. The memos had already received such public notoriety
that the new details in them did not shock many people. (Even the
revelation, a few days later, that 9/11 mastermind Khalid Sheikh
Mohammed and another detainee had been waterboarded hundreds of times
did not drastically alter the contours of the story.) And the White
House certainly did its part to head off further controversy. On the
Sunday after the memos were revealed, Emanuel appeared on This Week With George Stephanopoulos
and declared that there would be no prosecutions of CIA operatives who
had acted in good faith with the guidance they were given. In his
statement announcing the release of the memos, Obama said, "This is a
time for reflection, not retribution." (Throughout, however, he has
been careful to say that the final decision is the attorney general's
to make.)
Emanuel and other administration officials could see
that the politics of national security was turning against them. When I
interviewed a senior White House official in early April, he remarked
that Republicans had figured out that they could attack Obama on these
issues essentially free of cost. "The genius of the Obama presidency so
far has been an ability to keep social issues off the docket," he said.
"But now the Republicans have found their dream…issue and they have
nothing to lose."
Emanuel's response to the torture memos should
not have surprised Holder. In the months since the inauguration, the
relationship between the Justice Department and the White House had
been marred by surprising tension and acrimony. A certain amount of
friction is inherent in the relationship, even healthy. But in the
Obama administration the bad blood between the camps has at times been
striking. The first detonation occurred in only the third week of the
administration, soon after a Justice lawyer walked into a courtroom in
California and argued that a lawsuit, brought by a British detainee who
was alleging torture, should have been thrown out on national-security
grounds. By invoking the "state secrets" privilege, the lawyer was
reaffirming a position staked out by the Bush administration. The move
provoked an uproar among liberals and human-rights groups. It also
infuriated Obama, who learned about it from the front page of The New York Times.
"This is not the way I like to make decisions," he icily told aides,
according to two administration officials, who declined to be
identified discussing the president's private reactions. White House
officials were livid and accused the Justice Department of sandbagging
the president. Justice officials countered that they'd notified the
White House counsel's office about the position they had planned to
take.
Other missteps were made directly by Holder. Early on, he
gave a speech on race relations in honor of Black History Month. He
used the infelicitous phrase "nation of cowards" to describe the hair
trigger that Americans are on when it comes to race. The quote churned
through the cable conversation for a couple of news cycles and caused
significant heartburn at the White House; Holder had not vetted the
language with his staff. A few weeks later, he told reporters he
planned to push for reinstating the ban on assault weapons, which had
expired in 2004. He was simply repeating a position that Obama had
taken on numerous occasions during the campaign, but at a time when the
White House was desperate to win over pro-gun moderate Democrats in
Congress. "It's not what we wanted to talk about," said one annoyed
White House official, who declined to be identified criticizing the
attorney general.
The miscues began to reinforce a narrative that
Justice has had a hard time shaking. White House officials have
complained that Holder and his staff are not sufficiently attuned to
their political needs. Holder is well liked inside the department. His
relaxed, unpretentious style—on a flight to Rome in May for a meeting
of justice ministers, he popped out of his cabin with his iPod on,
mimicking Bobby Darin performing "Beyond the Sea"—has bred tremendous
loyalty among his personal staff. But that staff is largely made up of
veteran prosecutors and lawyers whom Holder has known and worked with
for years. They do not see the president's political fortunes as their
primary concern. Among some White House officials there is a
not-too-subtle undertone suggesting that Holder has "overlearned the
lessons of Marc Rich," as one administration official said to me.
The
tensions came to a head in June. By then, Congress was in full revolt
over the prospect of Gitmo detainees being transferred to the United
States, and the Senate had already voted to block funding to shut down
Guantánamo. On the afternoon of June 3, a White House official called
Holder's office to let him know that a compromise had been reached with
Senate Democrats. The deal had been cut without input from Justice,
according to three department officials who did not want to be
identified discussing internal matters, and it imposed onerous
restrictions that would make it harder to move detainees from Cuba to
the United States.
Especially galling was the fact that the White
House then asked Holder to go up to the Hill that evening to meet with
Senate Democrats and bless the deal. Holder declined—a snub in the
delicate dance of Washington politics—and in-stead dispatched the
deputy attorney general in his place. Ultimately the measure passed,
despite Justice's objections. Obama aides deny that they left Holder
out of the loop. "There was no decision to cut them out, and they were
not cut out," says one White House official. "That's a
misunderstanding."
Holder is clearly not looking to have a
contentious relationship with the White House. It's not his nature, and
he knows it's not smart politics. His desire to get along has proved
useful in his career before, and may now. Emanuel attributes any early
problems to the fact that "everyone was getting their sea legs," and
insists things have been patched up. "It's not like we're all sitting
around singing 'Kumbaya,' " he says, but he insists that Obama got in
Holder exactly what he wanted: "a strong, independent leader."
There's
an obvious affinity between Holder and the man who appointed him to be
the first black attorney general of the United States. They are both
black men raised outside the conventional African-American tradition
who worked their way to the top of the meritocracy. They are lawyers
committed to translating the law into justice. Having spent most of
their adult lives in the public arena, both know intimately the tug of
war between principle and pragmatism. Obama, Holder says confidently,
"understands the nature of what we do at the Justice Department in a
way no recent president has. He's a damn good lawyer, and he
understands the value of having an independent attorney general."
The
next few weeks, though, could test Holder's confidence. After the
prospect of torture investigations seemed to lose momentum in April,
the attorney general and his aides turned to other pressing issues.
They were preoccupied with Gitmo, developing a hugely complex new set
of detention and prosecution policies, and putting out the daily fires
that go along with running a 110,000-person department. The regular
meetings Holder's team had been having on the torture question died
down. Some aides began to wonder whether the idea of appointing a
prosecutor was off the table.
But in late June Holder asked an
aide for a copy of the CIA inspector general's thick classified report
on interrogation abuses. He cleared his schedule and, over two
days, holed up alone in his Justice Depart ment office, immersed
himself in what Dick Cheney once referred to as "the dark side." He
read the report twice, the first time as a lawyer, looking for evidence
and instances of transgressions that might call for prosecution. The
second time, he started to absorb what he was reading at a more
emotional level. He was "shocked and saddened," he told a friend, by
what government servants were alleged to have done in America's name.
When he was done he stood at his window for a long time, staring at
Constitution Avenue.
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