I understand that the attorney general is different from every other cabinet officer. Though I am a part of the president's team, I am not a part of the president's team in the way that any other cabinet officer is. I have a special and unique responsibility. There has to be a distance between me and the president. The president-elect said when he nominated me that he recognized that, that the attorney general was different from other cabinet officers. I think if you look at my record, if you look at my career and the decisions that I have made, I have shown that I have the ability and, frankly, the guts to be independent of people who have put me in positions.
How do we square this statement with the President's announcement that those who waterboarded terrorism suspects, among other torture techniques, would not be prosecuted? By issuing such a statement it appears President Obama is the "legal decider" and he has decided, in explicitly political terms, that "nothing will be gained by spending our time and energy laying blame for the past."
I will not describe what could be gained as others have done an eloquent job but I would like to point out that seeking justice for wrongly injured people is not "retribution" as the President put it.
Holder, for his part, appears to be a good foot soldier for Obama. He says it wouldn't be fair to prosecute agents if they were following DOJ advice even if that advice, from the Ashcroft-Gonzalez Justice Department, was flawed. I can understand that logic even if I don't like it but Holder goes a step further: he promises to provide free legal counsel to anyone accused and
To the extent permissible under federal law, the government will also indemnify any employee for any monetary judgment or penalty ultimately imposed against him for such conduct and will provide representation in congressional investigations.
Today Rahm Emanuel, acting as spokesman for the legal decider in Chief, says of torture-policy devisers:
he [Obama] believes that they were -- should not be prosecuted either.
Again, shouldn't this be an independent legal decision based on whether or not laws were broken? Here is Holder's mission statement from the DOJ website:
To enforce the law and defend the interests of the United States according to the law.........to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.
Maybe that last part is the key; since most of the tortured weren't Americans we apparently don't need to worry about "fair and impartial administration of justice."
Inside, more from Holder's confirmation hearing regarding his responsibilities as Attorney General and a report from Newsweek on the chance Holder may still show some independence from the Office of the President.
Here are some excerpts from Eric Holder's confirmation hearings relevant to the question of who should be making decisions on prosecutions and what the relevant criteria should be:
SENATOR ARLEN SPECTER: Next to the president of the United States, there is no federal officer more important than the attorney general. The attorney general is different from any other Cabinet officer because Cabinet officers ordinarily carry out the policies of the president. But the attorney general, has an independent duty to the people and to uphold the rule of law.
HOLDER: Thank you, Mr. Chairman, Senator Specter, and members of the Judiciary Committee. I am deeply honored to appear before you today. In five days, just a short distance from his historic room, the next president of the United States will take the oath of office. He will swear to preserve, protect, and defend the Constitution of the United States. I have been asked by him to serve as attorney general, the Cabinet officer who is the guardian of that revered document. I feel the full weight of this responsibility. If confirmed by the Senate, I pledge to you and to my fellow citizens that I will faithfully execute my duties as attorney general of the United States of America. I will do so by adhering to the precepts and principles of the constitution.
ERIC HOLDER: I can also assure you that I will bring to the office the principle that has guided my career. That the Department of Justice, first and foremost, represents the people of the United States not any one president, not any political party, but the people of this great country.
I learned that principle in my first days at the department when I sent corrupt public officials from both parties to jail. It guided my work as U.S. attorney for the District of Columbia when I prosecuted one of the most powerful members of my own party at the very time he held in his hands a top legislative initiative of my own president.
And it guided my service as deputy attorney general when I recommended independent counsel investigations not just of members of the Cabinet but of the very president who appointed me and in whose administration I proudly served.
None of those calls was easy, but I made them because I believe they were the right decisions under the law. If confirmed as attorney general, I pledge to you that the same principle will guide my service and inform every decision that I make.
I have spent most of my career at the Department of Justice and I cherish it as an institution. Its history, its spirit, its people, and its sense of integrity are unmatched within the federal government. If I have the honor of serving as attorney general, I will uphold the trust that you have placed in me.
I will do so by ensuring the department is an instrument of our great Constitution but more than that, the servant of the American people.
SENATOR KOHL:
How can you assure us that you are the right person to restore the independence of the Justice Department, especially in light of the questions raised by your critics that you were not sufficiently independent of the White House in the Clinton administration?
HOLDER: Senator, everything that I owe as a professional I owe to the Department of Justice. It is an institution that I love. I came into the department as a bright young lawyer, a fresh young lawyer out of Columbia University, into the honors program. I had the pleasure of working with the best lawyers, I think, in the world. I learned how to be a lawyer at the Justice Department.
I understand that the attorney general is different from every other cabinet officer. Though I am a part of the president's team, I am not a part of the president's team in the way that any other cabinet officer is. I have a special and unique responsibility.
There has to be a distance between me and the president. The president-elect said when he nominated me that he recognized that, that the attorney general was different from other cabinet officers.
I think if you look at my record, if you look at my career and the decisions that I have made, I have shown that I have the ability and, frankly, the guts to be independent of people who have put me in positions.
President-elect Obama -- President Obama -- is not, I expect, going to ask me to do anything that would compromise what I should be doing as attorney general. But I want to assure you and the American people that I will be an independent attorney general. I will be the people's lawyer.
Finally, Newsweek is reporting there is still a chance some in the Bush Administration will face justice:
Senior Justice Department lawyers and other advisers, who declined to be identified discussing a sensitive subject, say Attorney General Eric Holder Jr. is seriously considering appointing an outside counsel to investigate whether CIA interrogators exceeded legal boundaries—and whether Bush administration officials broke the law by giving the CIA permission to torture in the first place. Even if Holder takes a pass, Sen. Patrick Leahy, chairman of the Senate Judiciary Committee, is still pushing for a "truth commission." In a democracy, the wheels of justice grind on—and the president, for good reason under the rule of law, does not have the power to stop them.
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Attorney General Eric Holder during his 
