In a letter to two Republican senators Friday, Attorney General Eric Holder apologized for not listing several friend-of-the-court briefs on the Senate Judiciary Committee questionnaire during his confirmation process last year. But Holder maintained his current position on executive power is consistent with what he expressed in the briefs.
A National Review column published earlier this month blasted Holder for not disclosing on his questionnaire two Supreme Court amicus briefs in the high-profile terrorism case of Jose Padilla that he had joined in signing. In one of the briefs, Holder and several former DOJ officials from the Clinton administration argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.
Republicans pounced on the omission and several days later, the DOJ turned over to the Senate half a dozen Supreme Court briefs Holder neglected to disclose.
In a letter Friday addressed to Senate Judiciary Committee Republicans Jeff Sessions of Alabama and Jon Kyl of Arizona, Holder wrote that the omision occurred because his initial reviewers relied on his law office files, which were incomplete. Later during the confirmation process, a second set of reviewers found the Padilla briefs but left them out because they “understood that question to call for briefs on which I had been the lawyer, not the client,” Holder wrote.
“Although it does not excuse my failure to list these briefs, I note that they have always been included in widely available legal databases, and have never been hidden from public view at all,” he added. “The bottom line, of course, is that I should have included these documents in my submission to the Committee. I am aware of no other inaccuracies in my questionnaire, and none has been brought to my attention.”
Last Friday, Sessions and Kyl sent a letter to Holder concerning the briefs and said they planned to question him at a panel oversight hearing on “the apparent contradictions” between his current views on terrorist detention and what he previously expressed in the briefs. That hearing was later postponed and rescheduled for April.
“Having now reviewed these briefs, we are concerned that some of the arguments contrast sharply with statements you made as Attorney General in defense of civilian trials for Khalid Sheikh Mohammed (KSM) and his fellow 9/11 co-conspirators,” the senators wrote in the letter last week. “Your brief also contrasts with the administration’s defense of its interrogation and civilian criminal handling of the Christmas Day bomber, Umar Farouk Abdulmutallab.”
In the response Friday, Holder said the amicus brief was fully consistent with his current view that the “criminal justice system remains a powerful weapon in our arsenal.”
“To be sure, the brief acknowledges the fact that, in light of legal constraints, there might be ’some hypothetical situation’ in which it may not be possible to use our numerous law enforcement tools to arrest and extract information from a U.S. citizen who we suspect is linked to terrorist activity,” Holder wrote. “This merely states the obvious fact that there may be limitations upon the ability of the executive branch to restrict the liberty of U.S. citizens, at least absent further authorization from Congress.”
He continued, “as noted in that brief, Congress has provided the president with comprehensive and extraordinary powers to fight terrorism without making claims that strain the Constitution. Where necessary, the president should work with Congress to obtain additional authority.”
As an example, Holder cited the Bush administration’s work with Congress to pass the USA PATRIOT Act.
“We are safer today because we have those tools,” Holder said of the Patriot Act.
The full text of the letter is embedded below. Leah Nylen contributed to this report.
Two additional U.S. Supreme Court briefs have come to light that Attorney General Eric Holder did not disclose during his confirmation process in late 2008 and early 2009, as required by a Senate Judiciary Committee questionnaire, according to The Blog of Legal Times.
On Wednesday, a story in The National Review blasted Holder for not disclosing two amicus briefs to the Supreme Court in the high-profile terrorism case of Jose Padilla that he had joined in signing.
The undisclosed briefs reported Friday, one of which related to allegations of racial bias by prosecutors in jury selection, and the other involving the timing of Miranda warnings, bring the total number of undisclosed briefs to four.
In The National Review Online story, former Deputy White House Counsel Bill Burck and Press Secretary Dana Perino criticized the Attorney General both for not listing the briefs on his Senate questionnaire, and for the content of one of the briefs, which argued that the danger of a too-powerful executive branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts.
When Holder submitted his questionnaire to the Senate Judiciary Committee in December 2008, Republicans said it was incomplete. In response, Holder supplied additional materials to the committee before his confirmation hearing in January 2009, but the four amicus briefs were not among the new materials.
Justice Department spokesman Matthew Miller told Politico that “the [Padilla] brief should have been disclosed,” but had been “ unfortunately and inadvertently” left out in the documents submitted to the Senate Judiciary Committee before Holder’s confirmation hearings.
At a meeting of the Judiciary Committee on Thursday Sen. Jon Kyl (R-Ariz.) said that it’s hard to believe the Holder simply forgot to disclose the Padilla briefs.
“Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country’s most-publicized terrorism cases?” asked Kyl. “To me, that strains credulity, and I’m someone who voted for Attorney General Holder.”
Holder’s defenders argued that omissions are simply unavoidable when preparing the questionnaires. Former Obama White House counsel Gregory Craig said that Holder should not be blamed.
“I’m sure it wasn’t Eric’s job to gather all the briefs,” Craig, now a partner at Skadden, Arps, Slate, Meagher & Flom, told the BLT. “The notion that this was an intentional oversight is preposterous.”
Republicans on the Senate Judiciary Committee have said that they will question Holder about the omissions when he appears before them during a previously scheduled Justice Department oversight hearing on March 23.
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Sen. Jeff Sessions (R-Ala.), the ranking Republican on the Senate Judiciary Committee, today blasted Attorney General Eric Holder’s defense of the Justice Department’s handling of the alleged Christmas Day bomber.
Holder on Wednesday wrote in a letter to Senate Republican leaders — including Sessions — that he made the decision to bring criminal charges against the suspect, Umar Farouk Abdulmutallab. Holder added that his decision is “fully consistent” with the practices and policies of the federal government.
That did not satisfy Sessions. “I think this letter, in terms of accuracy and professionalism, fails,” Sessions said in remarks at a Senate Judiciary Committee business meeting today. “We’re entitled to better than this.”
Conservative senators have been critical of the administration’s decision to charge the alleged bomber criminally rather than put him in military custody for interrogation. Senators have sent numerous letters to Attorney General condemning the decision to treat Abdulmutallab as a civilian. Read our previous reports on three of the letters here, here and here.
Senate Judiciary Committee Republicans yesterday demanded a hearing with Holder. Panel Chairman Patrick Leahy (D-Vt.) said one is already in the works for March.
Here are some passages from Holder’s letter that Sessions criticized:
- Holder: “I made the decision to charge Mr. Abdulmutallab with federal crimes, and to seek his detention in connection with those charges, with the knowledge of, and with no objection from, all other relevant departments of the government.”
- Sessions: “This statement stands in stark contrast to the testimony of Homeland Security Secretary [Janet] Napolitano, Director of National Intelligence Dennis Blair, Director of the National Counterterrorism Center Michael Leiter, and FBI Director Robert Mueller, all of whom said they were not consulted on the decision. And in fact, it does appear from the letter, if you read it carefully, that the decision was made before they were notified. It had already been made and a lawyer had already been appointed and he’d clammed up.”
- Holder: “Since the September 11,2001 attacks, the practice of the U.S. government, followed by prior and current Administrations without a single exception, has been to arrest and detain under federal criminal law all terrorist suspects who are apprehended inside the United States. The prior Administration adopted policies expressly endorsing this approach.” He added: “In fact, two (and only two) persons apprehended in this country in recent times have been held under the law of war. Jose Padilla was arrested on a federal material witness warrant in 2002, and was transferred to law of war custody approximately one month later, after his court-appointed counsel moved to vacate the warrant. Ali Saleh Kahlah Al-Marri was also initially arrested on a material witness warrant in 2001, was indicted on federal criminal charges (unrelated to terrorism) in 2002, and then transferred to law of war custody approximately eighteen months later.”
- Sessions: “These two statements cannot be reconciled.”
- Holder: “In Mr. Padilla’s case, the United States Court of Appeals for the Second Circuit found that the President did not have the authority to detain him under the law of war.”
- Sessions: “He cites the holding of the reversed Second Circuit decision—that the President lacks the authority to detain a U.S. citizen as an enemy combatant on U.S. soil—without mentioning that the Supreme Court ruled one year later, in Hamdi v. Rumsfeld, that ‘[t]here is no bar to this Nation’s holding one of its own citizens as an enemy combatant… A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States,’ … ’such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict’.”
- Holder: “[W]hen the Bush administration attempted to deny Jose Padilla access to an attorney, a federal judge in New York rejected that position, ruling that Padilla must be allowed to meet with his lawyer. Notably, the judge in that case was Michael Mukasey, my predecessor as Attorney General. In fact, there is no court-approved system currently in place in which suspected terrorists captured inside the United States can be detained and held without access to an attorney; nor is there any known mechanism to persuade an uncooperative individual to talk to the government that has been proven more effective than the criminal justice system.”
- Sessions: “That is a misrepresentation of the situation. He never acknowledges that he is comparing apples to oranges. Judge Mukasey didn’t grant Padilla a lawyer as part of his arrest or interrogation. He granted Padilla a lawyer much later when he was filing a petition for habeas corpus to challenge the legality of his detention, and eventually he was appointed one. But not the night of his arrest.”
- Holder: “Richard Reid, a British citizen, was arrested in December 2001 for attempting to ignite a shoe bomb while on a flight from Paris to Miami carrying 184 passengers and 14 crewmembers. He was advised of his right to remain silent and to consult with an attorney within five minutes of being removed from the aircraft … pled guilty in October 2002, and is now serving a life sentence in federal prison.”
- Sessions: “He cites how Richard Reid, the shoe bomber, was charged in the civilian criminal system, but fails to acknowledge that there was no military commission system in place at the time of his arrest in December 2001. The military commission system wasn’t brought under congressional authorization until 2006, when we passed legislation to do that.”
- Holder: “[T]he Bush Administration used the criminal justice system to convict more than 300 individuals on terrorism-related charges.”
- Sessions: “Since May 2009, [Republican] Senator [Jon] Kyl [of Arizona] and I have been asking the Attorney General to explain the basis for this most questionable claim. To date, we have received no response to our repeated requests … for this information. If this figure is valid, why is the Attorney General not willing to explain it?”
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White House spokesman Robert Gibbs said defense and intelligence officials had the opportunity to object to a decision to criminally indict alleged Christmas Day airplane bomber, Umar Farouk Abdulmutallab. But no one registered objections at a Jan. 5 meeting with President Barack Obama, Gibbs said.
“I will say that anybody that wanted or needed to register their concern, the notion that somehow a forum wasn’t readily available to register anybody’s concern doesn’t certainly comport the way I understand events, having been in the room watching those present have an opportunity to ask questions about those procedures,” Gibbs said at a White House news briefing Monday.
The meeting was held in the White House Situation Room to review the intelligence failures that led to the accused al-Qaeda associate being allowed to board a Detroit-bound commercial airliner with explosives in his underwear. Attorney General Eric Holder, Defense Secretary Robert Gates, Director of National Intelligence Dennis Blair, CIA Director Leon Panetta, and Director of the National Counterterrorism Center Michael E. Leiter attended, Gibbs said.
Gibbs’s remarks lent support to a Los Angeles Times article today that said CIA officials were at the table with DOJ officials before a decision was made to read Abdulmutallab his Miranda rights, a move that has sparked fierce criticism from Republicans and some administration officials, including Blair.
Asked if the administration had ruled out treating Abdulmutallab as an “enemy combatant” without the protections accorded criminal defendants, Gibbs said: “I think that very experienced interrogators at the FBI made decisions about interrogation, and the Department of Justice made determinations to seek an indictment, and the President believes that’s the appropriate place.”
Gibbs did note there is precedent for reversing such decisions, citing the Jose Padilla and Ali Saleh Kahlah al-Marri cases.
After the Sept. 11, 2001 terrorist attacks, the government charged U.S. citizen Jose Padilla, who was believed to have trained with al-Qaeda, with terrorism offenses. Later Padilla was sent to military custody for three and a half years. In 2007, Padilla was convicted in federal court in Miami of conspiracy to kill and sentenced to prison. Al-Marri likewise was arrested after the 9/11 attacks on suspicion of working with al-Qaeda, then later held in military custody. Last year he pleaded guilty in federal court in Illinois to supporting al-Qaeda.
Pressed whether the administration believed there’s “no more intelligence to be gained” from Abdulmutallab, Gibbs was more cryptic. “The White House is satisfied that the process of gaining that intelligence is working,” he said.
Gibbs also said Monday that “no decision” has been made to transfer the trial of accused 9/11 conspirator Khalid Sheikh Mohammed and four others out of New York City, despite news reports to the contrary last week. “[D]ecisions that are being reported as having been made have not been made,” Gibbs said.
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Yesterday, we reported on the Justice Department’s break-up with the ever-controversial John Yoo. The department had been defending the former deputy assistant attorney general for more than six months in a civil lawsuit brought by former detainee Jose Padilla.
In a filing Monday, the Justice Department advised the court that “private counsel will be assuming representation of Mr. Yoo in this matter.” It’s still unclear who initiated the split — the Justice Department declined to say — but we now know who will be representing Yoo going forward: Gibson, Dunn, & Crutcher partner Miguel Estrada, co-chair of the firm’s Appellate and Constitutional Law Practice Group.
Estrada, reached today, declined to discuss the fee arrangement, but the Justice Department will be paying at least part of Yoo’s fees — up to $200 an hour (as per the department’s standard retention agreement).
Estrada has been representing Yoo pro bono in a long-running Office of Professional Responsibility probe of his work while he was a lawyer in the Office of Legal Counsel. The OPR report, which will examine whether Yoo and others violated professional standards by blessing some the the Bush administration’s most controversial national security policies, is expected to be completed in coming weeks.
Padilla, who was detained for more than three-and-half years in a military brig in South Carolina, sued Yoo in January, alleging that he was one of the architects of unlawful policies that led to the harsh interrogations and extreme isolation he allegedly suffered there. His lawsuit asks for a judgment declaring the policies unlawful, $1 in damages and attorneys fees.
A federal judge refused to throw out the Padilla case last month, after the Justice Department argued that a civil suit was an inappropriate vehicle for addressing issues raised in his complaint, and Yoo appealed. Now he’ll have in his corner one of the nation’s most respected appellate lawyers.
Estrada’s name surfaced recently during Supreme Court nominee Sonia Sotomayor’s confirmation hearings. Sen. Orrin Hatch (R-Utah) recalled with disdain President Barack Obama’s opposition to Estrada when he was a nominee for the U.S. Court of Appeals for the D.C. Circuit. Despite Estrada’s own compelling life story — born in Honduras, he immigrated to the U.S. when he was 17 — Democrats firmly opposed his nomination, and he eventually withdrew.
From Hatch’s opening statements:
If a compelling life story, academic and professional excellence, and a top ABA rating make a convincing confirmation case, Miguel Estrada would be a U.S. Circuit Judge today. He is a brilliant, universally respected lawyer, one of the top Supreme Court practitioners in America. But he was fiercely opposed by groups, and repeatedly filibustered by Democrat Senators, the ones who today say these same factors should count in Judge Sotomayor’s favor. Whether I vote for or against Judge Sotomayor, it will be by applying the principles I have laid out, not by using such tactics and standards used against these nominees in the past.
The former deputy attorney general of the Office of Legal Counsel will no longer be represented by Justice Department lawyers in a lawsuit in California. Private lawyers will defend John Yoo on DOJ’s dime — a max of $200 an hour.
Yoo, now a visiting professor at Chapman University School of Law, is being sued by Jose Padilla, who was detained for more than three-and-half years in a military brig in South Carolina. Padilla was convicted last year of supporting terrorists and conspiring to commit murder. Padilla, a U.S. citizen, claims that Yoo was one of the architects of unlawful policies that led to the harsh interrogations and extreme isolation he allegedly suffered there. His lawsuit asks for a judgment declaring the policies unlawful, $1 in damages and attorneys fees.
“The department so far has been able to provide direct representation in this case by arguing that the lawsuit should be dismissed for qualified immunity reasons, and that remains the department’s position,” Tracy Schmaler, a Justice Department spokeswoman, said yesterday in an e-mail. “But as this case moves forward, the defendant deserves the opportunity to retain defense counsel that can make any and all arguments available on his behalf.”
It’s unclear who dumped whom, and court filings give no indication as to who will represent Yoo going forward.
The move comes less than week after a report by a group of inspectors general concluded that Yoo used flawed reasoning to support the Bush administration’s warrantless wiretapping program, and months after the Obama administration released legal memos (many of which were withdrawn in part or in full) showing Yoo’s gaping view of executive power.
A federal judge refused to throw out the Padilla case last month, after the Justice Department argued, while holding its nose, that a civil suit was an inappropriate vehicle for addressing issues raised in his complaint.
Schmaler said footing the legal bills is “normal practice when the potential exists for disagreement between the government and the defendant over complex legal questions.” (Qualified immunity protects government officials from being sued for damages unless they violated clearly established law.)
The Justice Department is also shelling out for private lawyers to defend former Attorney General Alberto Gonzales against a lawsuit alleging that he encouraged officials to inject partisan politics into the department’s hiring and firing practices. And the department is paying the bills for six prosecutors under criminal investigation for their handling of the Ted Stevens case.
The DOJ’s standard retention agreement stipulates that lawyers with five or more years of experience may be reimbursed up to $200 an hour, for a maximum of 120 hours a month. (Before you get all indignant, that’s less than a first-year associate at a major D.C. firm bills.)
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Brooklyn-born Jose Padilla can pursue civil charges against former Office of Legal Counsel lawyer John Yoo for helping justify government actions that Padilla claims led to his torture, a judge has ruled. Read the NYT story here. Read the Bloomberg story here.
Padilla is the convert to Islam who was arrested in 2002 on suspicion of plotting to detonate a radioactive “dirty bomb” in the U.S. He was convicted in 2007 of providing support to terrorism. But in between the two events, he spent more than three years in a Navy bring in Charleston, S.C., as an “enemy combatant.” During that time, Padilla claims he was subjected to unconstitutional physical and psychological abuse. The abuse was made possible by memos Yoo authored at the DOJ, such as one denying enemy combatants the protections of the Geneva Conventions, Padilla argues.
The order by U.S. District Judge Jeffrey White of San Francisco late Friday could open the door to more actions attempting to hold government officials responsible for the abuse of detainees, the NYT writes. White, who was appointed by President George W. Bush, rejected all but one of Yoo’s immunity claims.
The Obama Justice Department is representing Yoo because he’s a former government official. (Fortunately for Yoo, Padilla seeks only $1 in damages and a declaration by the court that his treatment was unconstitutional. Otherwise the former deputy assistant attorney general might want to think about finding different representation.)
DOJ spokesman Charles Miller told the NYT: “We’re reviewing the decision.”