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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Attorney General Eric Holder’s critics have turned to a friend-of-the-court brief he signed in 2004, espousing the view that the danger of a too-powerful Executive Branch outweighs the risk of losing intelligence in terrorism cases prosecuted in civilian courts. (h/t Politico)
The brief, filed in the case of Jose Padilla, argued that the president does not have the authority to imprison a U.S. citizen indefinitely and without access to counsel or courts. Padilla, suspected of plotting a dirty bomb attack, was detained as material witness in May 2002 and shunted into military custody about a month later. (He was later removed to the criminal justice system, prosecuted and was convicted in 2007 of conspiracy to murder, kidnap and maim people and two counts of providing material support to terrorists.)
Two of Holder’s most prominent critics from the Bush administration, former Deputy White House Counsel Bill Burck and Press Secretary Dana Perino, highlighted the brief in this March 10 story in the National Review. The brief adds a new wrinkle in the debate over the Obama administration’s handling of the so-called Christmas Day bomber Umar Farouk Abdulmutallab, while providing Holder’s adversaries another peg for criticism: Holder did not report the brief on his Senate questionnaire despite a requirement to do so.
Justice Department spokesman Matthew Miller told Politico that “the 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.
“In any event, the Attorney General has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearings,” Miller said.
That is unlikely to be the last word on the subject. Sen. Jeff Sessions (R-Ala.), the ranking member of the judiciary committee, issued a statement Thursday morning saying he was “deeply concerned” about the lapse.
“Not only was the Attorney General required to provide the brief as part of his confirmation, but the opinions expressed in it go to the heart of his responsibilities in matters of national security,” Sessions said. “This is an extremely serious matter and the Attorney General will have to address it immediately.”
The Obama administration has argued vigorously that placing bombing suspect Abdulmutallab in the custody of the FBI in no way limited intelligence-gathering efforts. Agents read the 23-year-old Nigerian his Miranda rights after about an hour of questioning, and he went silent.
Republicans argued he should have been transferred to to military custody and interrogated without benefit of the right to remain silent. The administration has countered that the suspect has begun cooperating with authorities and has provided a valuable stream of intelligence ever since.
The brief in the Padilla case said that the civilian justice system may pose obstacles to detention or intelligence-gathering, but that such risks represent “an inherent consequence of the limitation of Executive power.”
The NRO piece breaks out the key passage:
[We] recognize that these limitations might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.
Read the full brief below.