Oversight for Eric Holder
By Jed Babbin
Republican gains in this week's election will obviously make it tougher - if not impossible - for President Obama to push more nation-changing legislation through congress. But, less obviously, the day-to-day pressures of dealing with a more inquisitive and less cooperative congress will fall more on the cabinet secretaries than on the president himself.
Attorney General Eric Holder is likely to feel more of this heat than the other members of Obama's cabinet for two reasons. First, not since Bobby Kennedy held the office has a president had such a close relationship with his attorney general. Holder - with Obama's blessing - has aggregated unprecedented authority over other agencies. He is playing Richelieu to Obama's Louis XIII. Second, Holder's broken promises and disdain for congressional opponents has strained his relationships with key congressional Republicans to the breaking point.
In his confirmation hearing, Holder addressed the concern raised about his already-close relationship with Obama. He said, "I understand that the attorney general is different from every other Cabinet officer," Holder said. "Although 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."
But from the beginning of his tenure, Holder's actions have made it clear the Chinese wall that should separate the AG from the president has been torn down.
No member of Obama's cabinet is more visible than Holder, who has been - with the exception of the healthcare debate -- at the epicenter of every one of the administration's controversial moves. Holder led the charge to move the trial of 9-11 planner Khalid Sheik Mohammed to New York City and his Justice Department outraged many congressional Republicans by dismissing the voter intimidation case against the New Black Panther Party.
Holder filed the suit against Arizona's new immigration-control statute and this week sent hundreds of Justice Department observers to Arizona to ensure there was no immigration-based "discrimination" against Hispanic voters.
Much of the friction between Holder and senate Republicans has centered on his seizure of control of much of the intelligence community's actions. Holder has, in the words of retiring Sen. Christopher Bond (R-Mo), ranking Republican on the Senate Permanent Select Committee on Intelligence, accomplished a "hostile takeover" of the intelligence community.
Soon after his confirmation, Holder (with Obama's approval) took the supervision of terrorist interrogations away from the CIA and moved it under White House control. Holder's other actions on that single subject destroyed his credibility among many top Republicans.
As two senators have told me, during his pre-confirmation meetings with them, Holder promised each of them that he wouldn't begin an investigation of CIA interrogators on old allegations of torture. When he broke that promise in August of 2009, the two - and others on their committees - were furious.
And when the White House was criticized for taking away the CIA's authority to supervise terrorist interrogations, Obama ordered Holder to form a "high value detainee interrogation group" - the "HIG" -- of FBI experts who could deploy quickly to obtain vital intelligence supposedly without using the harsher interrogation methods. On Christmas Day four months later the unsuccessful underwear bomber, Umar Farouk Abdulmutallab, was captured and we found out that the HIG didn't exist. Obama and Holder had broken that promise.
Perhaps most importantly, Holder has taken control of the information that flows between the intelligence agencies and the House and Senate intelligence committees. This is an apparent violation of law: the National Security Act requires intelligence agencies to keep the oversight committees apprised of all but a few of their actions.
Holder's relationship with congressional Republicans in both houses of congress has been unduly strained by his refusal to reply to inquiries about these and other Justice Department actions. Sen. Jeff Sessions (R-Ala), ranking Republican on the Judiciary Committee, among other members, has sent dozens of urgent inquiries to Justice and received no answer. Several Republican House members sent letters to Holder on immigration issues and on the Justice Department's unusual dismissal of the voter intimidation case against the New Black Panther Party but have not received any response.
Many of Holder's actions have been taken in secret. Just as he exerts de facto control over what the intelligence community tells congress, Holder has apparently assumed de facto control over the Pentagon's decisions to release terrorists from Guantanamo Bay.
Since the process was established by presidential order (and later by law) the Pentagon is responsible for reviewing the status of every detainee to determine if he is a terrorist, if he could be tried for crimes under the law of war, or if he can be released to the custody of another nation or freed in his native country. The Pentagon undertook a review of these rules last year. And, according to a letter sent to Holder by Sens. Bond and Sessions, Holder has intervened to set his own rules.
In a letter released publicly last week, Bond and Sessions wrote to Holder asking for the previously undisclosed guidance he reportedly issued to the Pentagon task force in September 2009 which told the participants to apply a presumption in favor or transferring or releasing certain detainees. (The letter also asks for any additional guidance Holder may have issued.)
Holder's actions have, in the view of many congressional Republicans, been so political and so closely tuned to Obama's agenda that the office of the Attorney General will have to come under significantly increased scrutiny. The results of this week's election will not defrock Obama's Richelieu, but they will ensure that he will not be able to avoid the close scrutiny has earned.
Jed Babbin served as a Deputy Undersecretary of Defense under George H.W. Bush. He is the author of several bestselling books including "Inside the Asylum," and "In the Words of Our Enemies."