"I don’t recall" is now "that would depend." While then-Attorney General Alberto Gonzales, when testifying before Congress, was oddly unable to remember anything prior to that morning’s breakfast, now Attorney General Eric Holder is oddly unable to forecast what, if anything, he will do to hold government officials accountable to the rule of law.
On Thursday, Holder testified before the House Judiciary Committee. Congressman Brad Sherman asked Holder what he would do if a government official was clearly and blatantly violating the law, was misspending funds on a project they had not been appropriated for, or was refusing to make public information in a manner clearly and explicitly required by law. Sherman asked about specific current examples and didn’t get a straight answer. He then asked a more general hypothetical question, and still didn’t get a straight answer. Sherman asked a third time, and still got nowhere. Holder avoided saying that, even as a general principle, he would ever prosecute a government official. (Here’s video).
Holder tried to suggest that Congressional oversight hearings might handle such matters, but Sherman pointed out that oversight hearings do not necessarily change anything. He asked whether Congress was just an advisory board now with no power at all. And of course, when you’ve reached the point of having members of Congress ask the executive branch whether Congress can have any power, Congress does not have any power. What went unsaid by questioner and witness alike, of course, was that oversight hearings would have teeth if Congress had not thrown away the power of impeachment.
Congressman Jerrold Nadler, earlier in the hearing, had explained to Holder that the appointment of a special counsel is legally required by the current evidence of torture. Nadler asked for an estimate as to when the special counsel who is investigating the CIA’s destruction of its torture videotapes will conclude his investigation, but Holder wouldn’t even guess, not within a month or a year, no guess at all. Asked whether that counsel’s task could be expanded to include the torture itself, in addition to the destruction of tapes, Holder just couldn’t answer or predict how or when or whether he ever would become capable of forming a thought on that topic. Asked whether he believes "state secrets" claims can be used to throw out entire cases rather than particular pieces of evidence, Holder just didn’t know what his opinion was or when he would have an opinion on that point either.
Nadler asked next whether, in Holder’s opinion, a president has the power to detain people indefinitely and without charge. If a yes-no question was going to elicit a yes or no response on Thursday, this seemed like the one. Who doesn’t say No to this question? Well, Nadler didn’t get a straight answer the first time he asked it, or the second, or the third, or the fourth, or the fifth. Nadler reworded his question five times as Holder ran out the clock without ever giving an answer that could possibly restrain his future conduct in any way. The closest that Holder came was in his fifth response, in which he said that a president does not have the power to detain people indefinitely and without charge unless doing so is "tied to" a "statute", "international agreement", or "custom." Got that? If it’s "tied to" a "custom" the president has the authority to hold people indefinitely and without charge. What custom might that possibly be? The custom of slavery?
Congressman Robert Wexler circulated an Email after the hearing that read, in part: "Today, I participated in Judiciary Committee hearings where Attorney General Eric Holder said definitively: “If somebody was tortured to death, clearly a crime would have occurred.” That’s definitive, except that there is no doubt that the United States has tortured numerous people to death (not – exactly – breaking news), no doubt that Holder knows this, and no doubt that our laws make torture a crime even when the victim does not die. Wexler’s Email was very positive about Holder’s comments but pointed out the pile of dead bodies and the legal necessity of appointing a special prosecutor.
When Holder was auditioned for his job before the Senate Judiciary Committee a few months ago he admitted that waterboarding is torture. Our laws require the prosecution of any act complicit in torture. Our former vice president now confesses to authorizing waterboarding on an almost daily basis. Waterboarding is the least of it. And the disgusting debates over exactly how much pain-infliction constitutes torture are outrageous when we are dealing with torture to the point of death.
These basic facts will not change because a new report comes out or more photos are released. The Senate is delaying further hearings, and the House is delaying Bybee’s impeachment, until Holder releases his department’s internal report on the torture lawyers. But we as citizens have no business delaying our work for any additional and superfluous pieces of evidence. We have an obligation to act now.