Archive for December 8, 2008

Marc Rich Is SO 2000: Eric Holder as Obama’s Attorney General

While we're on the subject of pardons ...

Torture, warrantless spying, Guantanamo … The next attorney general has a lot to clean up when the Bush frat party vamooses next month. Obama recently named Eric Holder as his nominee for the job. One would think with the beating American civil liberties have sustained, mainstream media would be focused on Holder’s positions on same. Instead, much reporting has chosen to focus on Holder’s involvement in Bill Clinton’s on-his-way-out-the-door pardon of Marc Rich, billionaire fugitive.

Marc Rich?!

The Rich angle is a lot sexier, in a Miami-Vice-sockless-loafers kind of way: money, oil, flights to Switzerland, more money, more oil, tanned socialite wife, and … Bill Clinton … Who wants to read boring stories about a bunch of Muslims locked up in beautiful, sunny Guantanamo Bay?

Barring the occasional invasion by PUMAs, A Candid World’s readers aren’t afraid to tackle tough issues and want to know how Obama is going to repair our reputation as moral leader among nations and protect our rights as citizens (natural born or not).

Who is Eric Holder? Yes, he was involved in the Marc Rich pardon. The NYT Op-Ed page has alternately claimed the Holder/Rich connection is and is not a big deal. The editorial staff, thankfully, focuses on Holder’s positions on Guantanamo, FISA, and torture, offering a more reasoned view than the Washington Post‘s Richard Cohen, who feels the Rich pardon wholly disqualifies Holder for the AG position. More important than the Rich pardon, Holder needs to account for his words in the first months following 9/11, when he suggested enemy combatants and other terror detainees might not be entitled to Geneva Convention protections.

Of course, much time has passed since January 2002, when Holder made these questionable remarks. In June 2008, Holder presented a speech at the National Convention of the American Consititution Society. Holder calls for closure of the “national embarrassment” that is Guantanamo and transfer of prisoners to U.S. soil. He also calls for an immediate end to extraordinary rendition and for an absolute rejection of torture. He condemns warrentless wiretapping. He further calls for adherence to the rules of FISA, and if there is broad agreement among military, intelligence, and legal communities that FISA needs updating, then fine: Improve FISA; don’t circumvent it.

There is no tension between an effective fight against those who have sworn to harm us and a respect for our most honored civil liberties tradition. We can never put the welfare of the American people at risk, but we can also never choose actions we know will weaken the legal and moral fiber of our nation.

Oft quoted, too, is this excerpt from a March 2006 National Journal article regarding the confirmation of Alberto Gonzales as AG; Holder says:

The attorney general is the one Cabinet member who’s different from all the rest.  The attorney general serves first the people, but also serves the president. There has to be a closeness at the same time there needs to be distance.

Very different from Gonzales, Holder would be an attorney general who is interested in restoring rather than trashing constitutional protections. In the end, people (mostly) on the right will focus on the Marc Rich pardon; people on the left, on Holder’s early post-9/11 positions. Of course, these issues should be addressed in confirmation hearings.

BUT can we please focus on the latter rather than the former?! Believe me, Marc Rich is an amoeba on a flea on a rat relative to the real issues that matter for our country’s future.

Al-Marri v. Pucciarelli: For the Supreme Court, a Curious Kind of Transition

What would John Yoo do?

If you visited the site over the weekend, you’ll recall a deluge of conspiracy theorists racking their brains for a theory – any theory – that would make Barack Obama constitutionally incapable of assuming the office of the Presidency. One of their ilk, Leo Donofrio, went as far as to push a poorly-pled lawsuit all the way to the Supreme Court, where it was presumed rejected as of Friday rejected. For real court-watchers, though, Friday’s news was much bigger, with significantly more interesting implications: the Court accepted certiorari of Al-Marri v. Pucciarelli, literally the last Supreme Court terror case of the Bush era, and the first of the Obama era.

Mr. al-Marri’s story, like that of so many erstwhile detainees, is a true tragedy. Ali Saleh Kahlah al-Marri, a citizen of Qatar, arrived with his family in the United States on September 10th, 2001 (talk about bad timing) to complete a master’s degree at Bradley University, in Peoria, having previously attained his undergraduate degree there. It was never to be. Shortly after 9/11, al-Marri was arrested for alleged financial crimes. The arrest was a pretext: it never came to trial, and in 2003, while still in detention, a nameless, faceless bureaucrat identified al-Marri as an “enemy combatant,” and he’s been bouncing between cramped, inhumane navy brigs ever since.

(The late, great Bryant Park Project (NPR BPP) gives a more snarky version of al-Marri’s story. We miss you, Alison Stewart!)

Al-Marri finally got his day in Court this last spring, after seven years in detention. Against assertions by the Bush Justice Department that al-Marri could be detained indefinitely without charge – a stance that, from any other office, would be shocking – the Fourth Circuit confirmed Bush’s ability to detain combatants, but required that the administration afford detainees some limited right to due process.  Of course, the dignity of Bush’s Justice Department could hardly suffer the indignity of being forced to do prove a case: they took an appeal, and the Supreme Court took review of the question, to determine the narrow issue of:

[W]hether Congress, in passing the Authorization for Use of Military Force after September 11, authorized the indefinite military detention of a legal immigrant seized on domestic soil whom the government alleged to have conspired with al Qaeda to carry out attacks against the United States.

Given the Court’s holding in Boumediene last term, and Justice Kennedy’s increasing skepticism of the administration’s position on national security matters, I would expect the Court to affirm the Fourth Circuit’s holding. But this case has a twist. By the time al-Marri’s case gets to the Supreme Court, the Department of Justice will be firmly in the hands of Eric Holder, Barack Obama’s nominee for Attorney General, a man who just recently promised to completely revamp policy towards suspected terrorist detainees.

President Obama, and Attorney General Holder, should follow through on this promise, starting with al-Marri. Obama cannot afford to let indefinite detention, extraordinary rendition, and torture “enhanced interrogation” continue a single day into the new administration. And, because detention policy falls within President Obama’s commander-in-chief powers, it doesn’t have to: Obama can prepare an executive order to issue on day one repudiating indefinite detention, and providing speedy, effective, and fair review of combatant designations (he needn’t, and shouldn’t, go so far as to provide full federal criminal process). With that issue resolved, Obama’s Justice Department could enter into negotiations with Al-Marri, to stay or dismiss his case pending a fair resolution, and compensate him for the injustice of his protracted detention. With any luck, and diligence, Pucciarelli v. Al-Marri could be moot by the time the Supreme Court was prepared to hear oral argument.

Of course, Obama (per General Holder) could always play hardball, and continue to prosecute the appeal against al-Marri, with the full intention of losing the case just to create a favorable prcedent that would force all future American presidents to foresake indefinite detention. It’s a nice thought, but it could be risky: there’s always the chance Scalia, Thomas, Alito, Roberts, and Kennedy would call his bluff. And can we as a people let al-Marri languish longer in detention, just for a political stunt?