US Attorney General Eric Holder is scheduled to come to Boston on Tuesday to deliver a speech at a civil rights symposium. Since a congressional committee has just recommended that he be cited for contempt of Congress, Holder will no doubt use his speech to try to highlight his record of civil rights, and to deflect controversy about the “Fast and Furious” gun-running program that has landed him in hot water with Congress.
But, in fact, the two issues are connected. Although there is much to praise about Holder’s civil rights record as attorney general, that record is marred by his failure to stand up to the one person with the most power to infringe on rights and liberties: his boss, the president. Meanwhile, deferring to executive power is precisely the thing that might get Holder cited for contempt of Congress.
First the praise. Holder has transformed the widely discredited Justice Department into an agency that often is willing to protect rights of ordinary people. The Justice Department rightly refused to defend the hateful Defense of Marriage Act. It correctly challenged Arizona’s dangerous immigrant-profiling law. And in other civil rights areas — voting rights, police practices, racial justice, and fair sentencing — Holder deserves credit.
On those issues, Holder has remained faithful to a vow he made during his confirmation hearing. Faced with the accusation that his prior experience as a Justice Department official would tempt him to bow to the administration, Holder promised to “do the right thing.”
What is more, Holder testified that the attorney general must take actions without regard to “the impact that it’s going to have on the administration that you serve.” The attorney general, he explained, has to keep his distance from executive branch officials, and “even from the president that the attorney general serves.”
Early in his tenure, Holder tried to “do the right thing,” but things changed quickly. Remember President Obama’s announcement that he would close the US prison at Guantanamo? It went by the wayside at the first sign of congressional opposition. So did promises to release top-level Bush administration documents about torture policy.
So, too, did Holder’s vow to try alleged terrorist suspects before civilian courts rather than military commissions. Recognizing that military commissions are tainted by evidence that is unreliable, secret, and sometimes obtained by torture, Holder understandably claimed that trying 9/11 suspects in civilian courts would be the “defining event of my time as attorney general.” Within a year, Holder had lost that battle as well.
Since then, his tenure has been defined less by the vow to “do the right thing” than by assertions of unchecked executive branch power. Earlier this year, for example, Holder suggested that a presidential “signing statement” could excuse President Obama’s decision to sign the National Defense Authorization Act of 2012, which codifies the military’s right to indefinitely detain anyone suspected of “assisting” terrorists, even US citizens.
Worse still, Holder recently became the first attorney general to endorse a presidential prerogative to target and assassinate civilians, including Americans. Dismissing calls for judicial oversight of assassination orders, Holder instead offered the bizarre claim that “ ‘due process’ and ‘judicial process’ are not one and the same, particularly when it comes to national security.”
Meanwhile, Holder’s Justice Department has overseen an expansion of domestic surveillance and a growing militarization of law enforcement officers. It has aggressively prosecuted government whistle-blowers, particularly those who expose illegal or wasteful homeland security schemes. Holder’s Justice Department has pressed a wildly expansive view of the “state secrets” doctrine to prevent courts from reviewing cases on warrantless wiretapping or official acts of torture.
And now comes the “Fast and Furious” scandal. Republican Representative Darrell Issa of California and Republicans Senator Chuck Grassley of Iowa are criticizing Holder for failing to turn over all of the Justice Department’s documents on a botched sting operation to trace guns sold to Mexican drug cartels. In response, Holder has once again invoked executive power — this time, a claim of “executive privilege.”
The contempt accusation, of course, is pure cynicism. Issa and Grassley had no interest in fighting executive privilege when George W. Bush was president.
Nevertheless, this scandal still gives Holder an opportunity to change course on the key issue — executive power — that has tainted his otherwise admirable stewardship. He should turn over all the “Fast and Furious” documents, and he should also take stands against executive “state secrets,” surveillance, and assassinations.
As Dr. Martin Luther King Jr. said, “The time is always right to do what is right.” Doing so would be the true “defining event” of Eric Holder’s time as attorney general.