After the end of the Clinton presidency, Holder left the Justice Department and joined (as a partner) the Washington, DC law firm of Covington & Burling (C&B). In 2004 he met Barack Obama at a dinner party hosted by former White House aide Anne Walker Marchange, a niece of Clinton friend Vernon Jordan.
In the spring of 2007, shortly after launching his White House bid, Obama asked Holder to join his presidential campaign as a legal adviser and strategist. At that time, Holder's firm, C&B, was representing 17 Yemeni detainees (and one Pakistani national) in Guantanamo Bay. A former client of C&B was yet another Guantanamo detainee, from Kuwait, who had contributed to an anthology of detainee poetry compiled and published by Holder’s C&B colleague, Marc Falkoff. Falkoff likened the plight of these “gentle, thoughtful” poets, to that of the Jews who had been held in concentration camps during World War II. The aforementioned Kuwaiti was released from Guantanamo in 2005 and promptly resumed his terrorist activities. In March 2008 he blew himself up with a truck bomb in Mosul, Iraq, killing 13 Iraqi army soldiers and wounding 42 others.
In the summer of 2008, candidate Obama tapped Holder to serve on the vice presidential selection team that ultimately chose Joe Biden to be Obama’s running mate. In November 2008, President-elect Obama, who was slated to take his oath of office two months later, selected Holder to serve as his Attorney General.
HOLDER'S LOW REGARD FOR CONSERVATIVES
At an American Constitution Society gathering in 2004, Holder made the following comments:
•"Conservatives have been defenders of the status quo, afraid of the future, and content to allow to continue to exist all but the most blatant inequalities."
•Conservatives have "made a mockery of the rule of law."
•Conservatives try to "put the environment at risk for the sake of unproven economic theories, to play to the fears of our citizens, and not to their hopes, and to return the nation to a time that in fact never existed."
•Conservatives are "breathtaking" in their "arrogance," which manifests itself in such things as "attacks on abortion rights," "energy policies that are as shortsighted as they are ineffective," and "tax cuts that disproportionately favor those who are well off and perpetuate many of the inequities in our nation."
•The hallmarks of the "conservative agenda" include "social division, mindless tax cutting, and a defense posture that does not really make us safer."
•"The nation must be convinced that it is a progressive future that holds the greatest promise for equality and the continuation of those policies that serve to support the greatest number of our people. In the short term this will not be an easy task. With the mainstream media somewhat cowered by conservative critics, and the conservative media disseminating the news in anything but a fair and balanced manner, and you know what I mean there, the means to reach the greatest number of people is not easily accessible."
HOLDER AND GUN RIGHTS:
In a 1995 address to the Woman's National Democratic Club, Holder announced the launch of a public campaign to "really brainwash people into thinking about guns in a vastly different way." "What we need to do," he explained, "is change the way in which people think about guns, especially young people, and make it something that's not cool, that it's not acceptable, it's not hip to carry a gun anymore, in the way in which we changed our attitudes about cigarettes." Holder added that he had already asked advertising agencies to produce anti-gun ads rather than commercials "that make me buy things that I don't really need"; that he had urged local newspapers and television stations to devote prime space and time, respectively, to anti-gun themes; and that he had asked the local school board to make the anti-gun message a part of "every day, every school, and every level."
During his tenure as Deputy Attorney General in the Clinton administration from 1997 to 2001, Holder was a strong supporter of restrictive gun-control legislation. He advocated federal licensing of handgun owners; a three-day waiting period on all handgun sales; limits on handgun sales to no more than one per month; a ban on the possession of handguns and so-called "assault weapons" by anyone younger than 21; a law authorizing the federal government to shut down all gun shows; and a national gun-registration mandate.
Holder also advanced the notion that “Every day that goes by, about 12, 13 more children in this country die from gun violence”—a statistic that was true only if one classified 18-year-old, gun-wielding gangsters as “children.” In the wake of the 9/11 attacks, Holder wrote an opinion piece for The Washington Post calling for a new law that would give the Bureau of Alcohol, Tobacco and Firearms “a record of every firearm sale.” He also advocated that prospective gun buyers be checked against the secret “watch lists” compiled by the government.
While Holder served in the Clinton Justice Department, he oversaw the “instant” background-check system for prospective firearm purchasers. Under Holder's watch, constant breakdowns of that system halted gun sales for hours or even days at a time. Even by the end of the Clinton administration, from September 1999 to December 2000, the system was down about one hour for every 16.7 hours of operation. The breakdowns often came in big blocks of time; gun shows sometimes were unable to sell guns during the entire weekend that they were open. Notably, the breakdowns were quickly resolved within weeks of President Bush assuming office in 2001, and the problems did not recur.
In 2008, Holder argued that “the Second Amendment did not protect an individual right to keep and bear arms,” but only protected government militias’ rights to guns. Scholar and political commentator John Lott writes that he “can’t find even one gun control law that Holder has opposed.” “On every gun control regulation [Holder] has discussed,” says Lott, “he has been supportive, including: bans, raising the age that someone can possess a gun, registration and licensing, one-gun-a-month limit on purchases, and mandatory waiting periods.”
HOLDER ON THE GUANTANAMO BAY DETENTION CENTER
In the latter days of the Bush administration, Holder publicly condemned the Guantanamo Bay detention center as an “international embarrassment.” He accused the U.S. government of having “authorized torture and … let fear take precedence over the rule of law.” Further, he demanded an immediate end to warrantless eavesdropping by intelligence and counterterrorism officials.
HOLDER ACCUSES THE BUSH ADMINISTRATION OF HAVING ABUSED AND TORTURED TERROR SUSPECTS
In a June 2008 speech to the American Constitution Society (ACS), Holder, who was himself an ACS board of directors member, condemned “the disastrous course” which the Bush administration had followed in its efforts to combat terrorism. “Our needlessly abusive and unlawful practices in the ‘War on Terror,’” he said, “have diminished our standing in the world community and made us less, rather than more, safe.”
Holder added that the Bush administration had taken many steps that “were both excessive and unlawful” in the wake of the 9/11 terrorist attacks:
“I never thought I would see the day when a Justice Department would claim that only the most extreme infliction of pain and physical abuse constitutes torture, and that acts that are merely cruel, inhuman and degrading are consistent with United States law and policy, that the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention, never thought that I would see that a president would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens. This disrespect for the rule of law is not only wrong, it is destructive in our struggle against terrorism.”
In April 2009, reporters asked Holder whether he might seek to prosecute CIA agents who had carried out the Bush administration policies to which the Attorney General now objected. He replied: “It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department.” Four months later, however, Holder referred their cases to a special federal prosecutor with broad and independent powers. In making this decision, the Attorney General ignored the bitter opposition of CIA Director Leon Panetta and even attorneys in his (Holder's) own Justice Department.
HOLDER AND ISLAMIC TERRORISM
In 2004 Holder filed an amicus brief on behalf of al Qaeda terrorist Jose Padilla, who had been dispatched to the United States by Osama bin Laden and Khalid Shaikh Mohammed to carry out a post-9/11, second wave of terrorist attacks. In the brief, Holder asserted that President Bush lacked the constitutional authority to determine the parameters of the battlefield in the war on terror. Padilla, for example, was arrested in an American airport when returning from a trip to Pakistan, where he had met with Mr. Mohammed to discuss plans for attacking U.S. interests. By Holder’s reckoning, Islamic terrorists had a right to be treated as criminal defendants, not enemy combatants, unless they were captured on a traditional battlefield.
As former Assistant U.S. Attorney Andrew C. McCarthy explains, Holder’s Padilla brief was "a comprehensive attack on Bush counterterrorism, an enthusiastic endorsement of the law-enforcement approach in vogue during the Clinton era (when Holder was deputy attorney general under Janet Reno, who also signed on to the Padilla brief)."
Notably, when the U.S. Senate in early 2009 deliberated vis a vis Holder's nomination for Attorney General, Holder failed to disclose seven legal briefs he had written or signed during the course of his professional career—most notably Amicus briefs on behalf of detained terrorists and enemy combatants like Padilla.
HOLDER SEEKS TO TRY ISLAMIC TERRORISTS IN CIVILIAN COURTS
In May 2009, Holder announced that Ahmed Ghailani—who had been indicted by a federal grand jury for the 1998 bombings (which killed 224 people, including 12 Americans) of two U.S. embassies in Africa—would be transferred from the Guantanamo Bay detention center to New York City for trial. This would make Ghailani the first Guantanamo detainee brought to the U.S. and the first to face trial in a civilian criminal court. Said Holder:
"By prosecuting Ahmed Ghailani in federal court, we will ensure that he finally answers for his alleged role in the bombing of our embassies in Tanzania and Kenya.... This administration is committed to keeping the American people safe and upholding the rule of law, and by closing Guantanamo and bringing terrorists housed there to justice we will make our nation stronger and safer."
On November 13, 2009, Holder announced that his Justice Department would likewise try five Guantanamo Bay detainees with alleged ties to the 9/11 conspiracy, in a civilian court—the U.S. District Court for the Southern District of New York. The defendants were Ramzi Bin al-Shibh, Walid bin Attash, Ali Abdul Aziz Ali, Mustafa Ahmed al-Hawsawi, and 9/11 mastermind Khalid Shaikh Mohammed (KSM).
In response to Holder's announcement, political commentator Mona Charen wrote: “By granting a civil trial to KSM, while Abd al-Rahim al-Nashiri, who bombed the USS Cole in Yemen, will receive a military tribunal, the U.S. telegraphs this message to terrorists: Wherever possible, attack our civilians. You'll get more lawyering and a better deal than if you attack our military. (And by the way, you'll get more rights than a member of our military who commits a crime.)”
MIRANDA RIGHTS FOR TERRORISTS
After Holder's announcement that Islamic terror suspects would be tried in civilian courts rather than in military tribunals, many Americans began to wonder if U.S. military and law-enforcement personnel would be required to be read Miranda rights—which bar prosecutors from using, as evidence, statements which suspects make before they have been informed of their right to remain silent and to consult an attorney—to newly captured terror suspects. In a November 2009 Justice Department oversight hearing by the Senate Judiciary Committee, Senator Lindsey Graham (R-South Carolina) raised this issue in the following contentious exchange with Holder:
GRAHAM: Can you give me a case in United States history where a (sic) enemy combatant caught on a battlefield was tried in civilian court?
HOLDER: I don't know. I'd have to look at that. I think that, you know, the determination I've made —
GRAHAM: We're making history here, Mr. Attorney General. I'll answer it for you. The answer is no.... If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?
HOLDER: He would certainly be brought to justice, absolutely.
GRAHAM: Where would you try him?
HOLDER: Well, we'd go through our protocol. And we'd make the determination about where he should appropriately be tried....
GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?
HOLDER: Again I'm not—that all depends. I mean, the notion that we—
GRAHAM: Well, it does not depend. If you're going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent. The big problem I have is that you're criminalizing the war, that if we caught bin Laden tomorrow, we'd have mixed theories and we couldn't turn him over—to the CIA, the FBI or military intelligence—for an interrogation on the battlefield, because now we're sayingâ€¨that he is subject to criminal court in the United States. And you're confusing the people fighting this war. What would you tell the military commander who captured him? Would you tell him, "You must read him his rights and give him a lawyer"? And if you didn't tell him that, would you jeopardize the prosecution in a federal court?
HOLDER: We have captured thousands of people on the battlefield, only a few of which have actually been given their Miranda warnings. With regard to bin Laden and the desire or the need for statements from him, the case against him at this point is so overwhelming that we do not need to—
GRAHAM: Mr. Attorney General, my only point—the only point I'm making, that if we're going to use federal court as a disposition for terrorists, you take everything that comes with being in federal court. And what comes with being in federal court is thatâ€¨the rules in this country, unlike military law—you can have military operations, you can interrogate somebody for military intelligence purposes, and the law-enforcement rights do not attach. But under domestic criminal law, the moment the person is in the hands of the United States government, they're entitled to be told they have a right to a lawyer and can remain silent. And if we go down that road, we're going to make this country less safe. That is my problem with what you have done.
The very next month, Holder's Justice Department elected to Mirandize the so-called “Christmas bomber,” al Qaeda operative Umar Farouk Abdulmutallab, a Nigerian-born Islamist who had tried to blow up a Detroit-bound Northwest Airlines jet with explosives hidden inside his underwear. Informed of his right to remain silent, Abdulmutallab promptly chose to exercise it. Soon thereafter, several FBI agents traveled to Nigeria to plead with the suspect's family for assistance. Ultimately (and fortuitously), the family traveled to the U.S., where they persuaded Abdulmutallab to cooperate.
In May 2010, Holder and the Obama administration abruptly shifted their position regarding the highly controversial and politically radioactive matter of Miranda rights for terror suspects. Specifically, Holder and the administration said that they would thenceforth seek to pass a law allowing investigators to interrogate terrorism suspects without informing them of their Miranda rights. As Holder put it, interrogators needed greater flexibility to question such suspects than was permitted by existing exceptions.
HOLDER REFUSES TO ACKNOWLEDGE ISLAM'S TIES TO TERRORISM
On May 13, 2010, Holder testified before the House Judiciary Committee. During that testimony, Rep. Lamar Smith tried to get the Attorney General to acknowledge that radical Islam might have played a role in motivating several recently attempted terrorist attacks against U.S. interests—most notably: (a) Major Nidal Malik Hasan's November 2009 shooting of 13 fellow U.S. soldiers in Fort Hood, Texas; (b) Farouk Umar Abdulmutallab's attempted bombing of a Northwest Airlines jet on Christmas Day 2009; and (c) Faisal Shahzad's attempted car bombing in New York's Times Square on May 1, 2010. Holder steadfastly refused to acknowledge Smith's assertion. A video and transcript of Holder's exchange with Smith can be viewed here.
Holder changes course and decides to try 9/11 mastermind in military tribunal
On April 4, 2011, Holder announced that the Justice Department, in an abrupt reversal of its November 2009 decision, would now proceed to try 9/11 mastermind Khalid Shaikh Mohammed (and 4 co-conspirators) in a military tribunal in Guantanamo Bay.
HOLDER CALLS AMERICA “A NATION OF COWARDS” ON RACIAL MATTERS
In a February 18, 2009 speech to Justice Department employees marking Black History Month, Holder alleged that Americans on the whole were afraid to confront racial issues in an honest or meaningful way. Among his remarks were the following:
"Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.... [W]e, average Americans, simply do not talk enough with each other about race. It is an issue we have never been at ease with and, given our nation’s history, this is in some ways understandable.... [T]his nation has still not come to grips with its racial past ... [A] black history month is a testament to the problem that has afflicted blacks throughout our stay in this country. Black history is given a separate, and clearly not equal, treatment by our society in general and by our educational institutions in particular."