After President Barack Obama nominated Eric Holder to be Attorney General, the Senate Judiciary Committee sent Holder a questionnaire that required him to provide copies of any briefs he had filed with the Supreme Court. Holder told the Senate he had participated in a total of five such briefs and that none of them dealt with terrorism-related issues. But as National Review Online has now confirmed, that was false. Specifically, Holder signed his name to an amicus brief arguing that President Bush lacked the authority to indefinitely detain Jose Padilla as an enemy combatant. That brief asserts:
[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.
Former press secretary to President Bush Dana Perino and former federal prosecutor Bill Burck comment in NRO:
The authors do cite an academic study purporting to show that two-thirds of suspects provide incriminating information after being read their rights — but this suggests, of course, that one-third did not. Maybe that’s okay for criminals, but the prospect of one out of three suspected terrorists not cooperating is far from reassuring.
Whatever the numbers are, the brief leaves no doubt that Holder views the loss of intelligence information as sometimes an acceptable tradeoff because, to quote from the brief again, “as a Nation we have chosen to place some limits on Executive authority in order to protect individual authority.” Pre-Obama Holder well appreciated that under some circumstances, treating terrorists like criminal defendants may be less protective of national security than treating them like enemies of the United States. But he was willing to take the risk to reduce what he perceived as possible abuses of power by the executive branch.
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The brief does not specifically quantify what level of risk the nation should be willing to accept. Perhaps it is 33 percent, reflecting the one-third of people who don’t cooperate after being Mirandized. Or maybe it’s something like the 20 percent of detainees released from Guantanamo who return to the fight, which, the president’s top counterterrorism adviser John Brennan said, “isn’t that bad” compared to the 50 percent recidivism rate of criminals.
Attorney General Eric Holder may be our nation’s top law enforcement officer, but he is also a political appointee subject to Senate confirmation. The United States Senate should have been informed about what Holder views as ‘acceptable’ and ‘unacceptable’ risks to national security. Holder, the Department of Justice, and the White House all owe the American people a believable explanation as to why Holder failed to disclose these views.
