Michael Gerson Loves The Attorney General

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Reading Michael Gerson's column attacking Attorney General Eric Holder, one cannot help but come to the conclusion that Gerson harbors a secret affection for the nation's chief prosecutor. Gerson ostensibly makes the case for why Holder is failing at his job, but his task is complicated by the facts -- facts he misstates so egregiously that I wonder whether he meant to erect the straw man case against Holder precisely so someone can knock it down. 


First, there was the decision to release Bush-era interrogation memos and reopen the investigation of CIA interrogators after they had been cleared by career prosecutors. Holder assumed these actions would rally public outrage. Instead, he started a national security debate he has pretty much lost

But Holder didn't make the decision. President Obama did, urged on by his White House counsel, Greg Craig. Remember those White House-provided tick-tocks of Oval Office debates between senior administration officials and the late-night musings of the President in Rahm Emanuel's office?  Holder agreed with the decision, but he did not make it. He never assumed that the 'actons would rally public outrage." In fact, as he told the White House at the time, he assumed that it would be a politically challenging decision that could have unseen ramifications -- which it did.  Gerson writes that Holder made the political choice, when the facts suggest that Holder made the un-political choice. 


 Second, there was Holder's repudiation in the matter of John Yoo and Jay Bybee, the Bush administration lawyers who provided the legal justification for enhanced interrogations. Holder appointees had determined the two lawyers guilty of professional misconduct. But the Justice Department's senior career attorney cleared Yoo and Bybee of the charge, embarrassing Holder in the process. 

Wrong. Holder never weighed in on Yoo or Bybee, much to the consternation of the left. He did not appoint the first person who reviewed the case; the second person to review the case was a career staffer who Holder put in her new job before the review reached her portfolio, and Holder had absolutely nothing to do with the final status determination of Yoo and Bybee. Whether Holder was embarrassed by the process or not is immaterial, because he did not control the process. Had he tried to control the process, he would have violated his own promise to the president and the public to run a more apolitical department than his predecessors.

 Third, there was the handling of the underwear bomber case. It is fortunate that suspect Umar Farouk Abdulmutallab eventually resumed cooperation. It is also evident that Holder's decision to Mirandize him after 50 minutes was hasty and based on minimal consultation with intelligence officials. Holder treated a national security judgment as a purely legal one. Director of National Intelligence Dennis Blair later told Congress: "That unit [the High Value Interrogation Group] was created exactly for this purpose -- to make a decision on whether a certain person who's detained should be treated as a case for federal prosecution or for some of the other means. We did not invoke the HIG in this case; we should have." In fact, Blair was unaware that the High Value Interrogation Group did not yet exist. 

Holder did not make the decision to Mirandize Abdulmuttalab. FBI agents did, after consulting with FBI headquarters and the DOJ's national security division in Washington, after consultation with senior defense and intelligence officials. Whether this consultation was "minimal" is irrelevant -- objecting to the Miranda grant would simply be a matter of an important national security official saying "Hey, we might want to wait a while before we do that" - is open to interpretation.   No one said anything like that -- maybe a legitimate issue, but not one that Holder is responsible for. Indeed, the FBI agents on the ground included, as FBI Director Bob Mueller testified yesterday, a specialist in interrogations. And indeed, the FBI invoked the public safety exception to the Miranda warning in order to gather information about an imminent threat. The debate about Abdulmuttalab's handling is germane, but Holder's role is exculpatory. (By the way: for the record: a deputy to Dennis Blair was on the first conference call convened by the White House before the crotch bomber was Mirandized and did not not object to the decision to do so.)  Moving to the next point:

There is no serious plan to close Guantanamo. Holder has been unable to articulate reasons some terrorism cases are referred to civilian courts while others are tried in military tribunals.

Well, Gerson is right. But he assumes that Holder is calling the shots. He isn't. The White House is. The White House hasn't figured out what it wants to do, or how it wants to sell the larger  case. The White House endorsed military tribunals, binding the Justice Department's National Security Division to a dual-track process with no clear rules of the road for which detainee goes where. If Gerson wants this case articulated more clearly, he ought to ask the White House to let Holder make the case.

The White House, having lost faith in Holder's ability to manage terrorism trials, has assumed direct control of the process. 

Not exactly. Holder can't proceed without guidance from the White House -- guidance that has yet to be provided. The tension between the Justice Department and the White House is there, but it is much less significant to the resolution of this question than the tension  between the executive and legislatives branches, and between the White House and Senate Republicans in particular.The White House hasn't lost faith in Holder to do anything;  Holder still makes the decision on whom to try, when and where, within the confines of what the law allows. And right now, the White House is working with Congress to try and figure out an ad hoc law that would enable these decisions to be made.

The Justice Department can be as a-political as it wants, but it will always be surrounded by politics. And truth be told, the left has much more of a valid reason to be angry with Holder than the right. 

Thumbnail photo credit: Win McNamee/Getty Images
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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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