Eric Holder

  • December 31, 2009

    The Senate recently confirmed "roughly three dozen" of the Obama administration's nominees, but left dozens more languishing, The Washington Post reported. Regarding nominations to the federal bench, The Post noted that the Senate has confirmed "just 13 judges, including Supreme Court Justice Sonia Sotomayor." The newspaper continued, "Nineteen judicial nominations are pending in the Senate with four referred to lawmakers last week."

    In a Dec. 23 press statement, Senate Judiciary Chairman Patrick Leahy blasted conservatives for slowing the nomination process. Leahy said:

    I have been calling on the Republican leadership to end the delays and obstruction of judicial nominations and join with us to make progress in filling some of the many vacancies on Federal circuit and district courts. I have done so repeatedly for most of the year, and several times over this last month. Regrettably, as we head into the winter recess and the end of the first session of the 111th Congress, Republican obstruction is setting a new low for the Senate in our consideration of judicial nominations.

    The Posted noted, however, that despite opposition on "some judicial picks, the Obama administration has nominated far fewer judges in its first year than did the administrations of George W. Bush and Bill Clinton."

    The San Francisco Chronicle reported on the embattled nominations of Magistrate Judge Edward Chen (right) for a federal judgeship in California and Dawn Johnsen to head the Office of Legal Counsel (OLC). The Chronicle stated that both nominations were sent back to the administration for reconsideration. 

    Sen. Dianne Feinstein told the Chronicle that she hoped the administration would renominate Chen, saying he has a "pristine record" as a magistrate judge.

    Opposition to Johnsen, an Indiana University law school professor and former member of the ACS Board of Directors, has been especially protracted, and, in part, has targeted her critique of the OLC during the Bush administration. Attorney General Eric Holder, on numerous occasions, has expressed strong support for Johnsen's nomination.

  • November 13, 2009
    Attorney General Eric Holder Jr. announced this morning that the Department of Justice will prosecute some suspected terrorists, held at the Guantánamo Bay military prison, in federal court.

    Holder said at a press briefing that Khalid Shaikh Mohammed and four other men, "accused of conspiring to commit the 9/11 attacks" will be prosecuted in federal court. Holder said that Abd al-Rahim al-Nashiri and four other military detainees charged with the 2000 "terrorist attack on the USS Cole," will be prosecuted before a military commission.

    "I am confident in the ability of our courts to provide these defendants a fair trial, just as they have for over 200 years," Holder said. "The alleged 9/11 conspirators will stand trial in our justice system before an impartial jury under long-established rules and procedures."

    Holder continued, "I want to assure the American people that we will prosecute these cases vigorously, and we will pursue the maximum punishment available. These were extraordinary crimes and so we will seek maximum penalties. Federal rules allow us to seek the death penalty for capital offenses, and while we will review the evidence and circumstances following established protocols, I fully expect to direct prosecutors to seek the death penalty against each of the alleged 9/11 conspirators."

    Holder's announcement drew mostly favorable comment from civil liberties groups that have opposed the use of military commissions.

    Human Rights First hailed the "decision to move the trials of the 5 Guantanamo detainees accused in the 9/11 conspiracy from the discredited Guantanamo military commissions and into federal courts to face justice."

    The American Civil Liberties Union called the action a "major victory for due process and the rule of law," but also criticized the administration for continuing "to use the illegitimate military commissions system to prosecute some Guantánamo detainees, including the defendant accused in the attack on the U.S.S. Cole."

  • November 3, 2009
    Attorney General Eric Holder and Secretary of Defense Robert Gates are opposing a bill that would block the Justice Department from prosecuting detainees at the Guantanamo Bay military prison in U.S. courts, reports The Associated Press. The news service says the administration officials stated in an Oct. 30 letter that they want the option of prosecuting detainees in military or civilian courts. Sens. Lindsey Graham, John McCain and Joe Lieberman are pushing the legislative measure that would bar the Justice Department from spending funds on prosecuting detainees in U.S. Courts.

    ABC News correspondent Jake Tapper also reports on his Political Punch blog that the administration will announce within the next couple of weeks "the names of detainees in Guantanamo Bay whom federal prosecutors plan on trying in U.S. civilian courts and which ones they will send to a military commission." In a recent guest post for ACSblog, Eric Montalvo, senior litigation counsel at Tully Rinckey PLLC in Washington, D.C. and a former Marine Corps Judge Advocate (JAG), examines the use of military commissions, saying that they "do not present defendants with a meaningful opportunity to challenge the bases of the detention." 

  • October 19, 2009

    Attorney General Eric Holder has announced that the Department of Justice does not consider it a priority to prosecute patients and distributors who are in "clear and unambiguous" compliance with state laws that allow for medical marijuana use.

    "This action ... reflects the clear sea change taking place, both domestically and especially internationally, regarding drug policy," writes Glenn Greenwald at Salon. "When Mexico decriminalized drugs for 'personal use' in August, the silence -- including from Washington -- was deafening[.]"

    Domestically, one may also note the recent introduction of legislation in the Senate which would end the sentencing disparity for possession of crack and powder cocaine. The minimum sentences for the same amount of the two drugs currently bears a 100:1 ratio which disproportionately affects African Americans. Companion legislation has already been introduced in the House and the Obama administration has voiced support for eliminating the disparity.

    ACS has published articles and blog posts related to debate over drug policy, including an Issue Brief by Professor Alex Kreit called Toward a Public Health Approach to Drug Policy, and guest blog posts by San Francisco District Attorney Kamala Harris and When Brute Force Fails author Professor Mark Kleiman.

  • September 23, 2009
    The Department of Justice (DOJ) has issued new procedures on when the government employs the state secrets privilege in litigation involving national security issues. The new policy, reports The Washington Post, would require government agencies such as the CIA to "convince the attorney general and a team of Justice Department lawyers that the release of the sensitive information would present significant harm to ‘national defense or foreign relations.'"

    In a statement announcing the policy, Attorney General Eric Holder said, "This policy is an important step toward rebuilding the public's trust in the government's use of this privilege while recognizing the imperative need to protect national security. It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."

    Holder also states that the DOJ is committed to ensuring that the state secrets privilege is not used "for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials."

    In a recent guest article for ACSblog, Professor Amanda Frost critiqued the Obama administration's use of the state secrets privilege, saying it was too similar to that of its predecessor and concluded that Congress should pass legislation to limit the privilege. For more discussion of the state secrets privilege, see video of the ACS event, "The State Secrets Privilege: Time for Reform?"

    The Bush and Obama administrations have drawn criticism for invoking the privilege to scuttle litigation over national security policy including rendition and warrantless spying, The Post reports. Some lawmakers, such as Sen. Patrick Leahy, have promoted legislation that would limit the privilege.

    Adam Serwer writes on Tapped that the new policy falls "well short of the standards that would be set by Senator Leahy's bill, but they seem more rigorous than I would have expected ...." Serwer concludes that the "guidelines are certainly better than I would have expected from the preliminary reports, but we'll see if they satisfy the senators sponsoring the state secrets bill. Leahy gave some positive feedback, (he also takes credit for some of the changes) but he didn't say that he would abandon the bill."