U.S. Senate Republican Whip Jon Kyl made the following statement Thursday at a Senate Judiciary Committee meeting regarding Attorney General Eric Holder:
"At Attorney General Holder's oversight hearing last year, he was asked about press reports that suggested certain DOJ lawyers working on detention matters may have case or positional conflicts arising from their prior representations of detainees in private practice.' "Several members of this committee followed-up with a letter to the Attorney General requesting information about lawyers with potential conflicts, the cases they participated in during private practice, the matters they handle at DOJ, and the procedures and standards the Department has in place to avoid actual or perceived conflicts.
"To be clear, we were not calling these lawyers' representation of detainees dishonorable or suggesting that there is no place in the government for their service. But it is legitimate for the American people to know whether the President and the Attorney General have decided that the individuals who volunteered their time challenging the detention of terrorists should now be hired, not to work on antitrust or tax matters, but to protect the very detention authorities they sought to curtail. This raises serious conflict of interest questions, and, as members of the Department's oversight committee, we were legitimately asking what, if anything, the Department was doing to actively guard against such potential conflicts.
"The response to our letter from Assistant Attorney General Ron Weich was far from comforting. Although he acknowledged that, "to the best of [the Department's] knowledge,' 9 lawyers (7 of whom were not identified in the letter) had been previously involved in representing detainees, he admitted that "the Department does not maintain comprehensive records of such information.' In other words, the Department has no idea whether its lawyers have conflicts that might make their work on detention matters inappropriate.
"While the Department's letter did not come close to providing us the information sought, it did reassure us that the Department's senior leadership responsible for detention policy--including the Attorney General himself--'had no involvement in representing detainees or other entities in detainee cases.'
"Unfortunately, this reassurance turned out to be unsupported by the facts. We learned yesterday that Holder himself had joined not one, but two Supreme Court briefs on behalf of now-convicted terrorist Jose Padilla. Prior to his confirmation, then-nominee Holder was required to submit copies of all Supreme Court briefs with which he was involved. He submitted amicus briefs in three cases, but failed to even mention the Padilla case.
"Yesterday, a Justice Department spokesman said that the briefs were "unfortunately and inadvertently' left out of his submission to the committee. Really? Are we expected to believe that then-nominee Holder, with only a handful of Supreme Court briefs to his name, forgot about his role in one of this country's most publicized terrorism cases? Or that he was not reminded about it when he later received our letter about recusals? That strains credulity.
"As somebody who voted for Holder, and his promise to be "transparent' and work cooperatively with the committee, I'm deeply disappointed.
"What were the briefs about? Well, the key issue in the Padilla case was whether the president had the authority to designate a U.S. citizen captured on U.S. soil as an enemy combatant. Holder argued that the president did not have this authority, and that Padilla must instead be charged in civilian court. Whether the failure to disclose the briefs was "inadvertent' or not, it was significant. Members of this committee were entitled to question Holder about views he'd expressed on terrorism policy before he became a key decision maker in that process.
"As I have the opportunity to review the Padilla briefs for the first time now, I must say that some of the things I see call into question the candor of other representations that the Attorney General has made to members of this committee in recent months.
"For instance, in one of the briefs, Holder acknowledges that the position he was advocating could have serious national security consequences:"[T]he government might be unable to detain a dangerous terrorist or to interrogate him or her effectively But our Nation has always been prepared to accept some risk as the price of guaranteeing that the Executive does not have arbitrary power to imprison citizens.'
"Holder's admission in 2004 that there may be very real national security consequences to charging a suspect in civilian court, as opposed to designating him as an enemy combatant, stands in stark contrast to his statements intended to justify charging the Christmas Day bomber in civilian court after only 50 minutes of questioning. Here's what Holder said in a February 3 letter to several members of this committee: "I am confident that, as a result of the hard work of the FBI and our career federal prosecutors, we will be able to successfully prosecute Mr. Abdulmutallab under the federal criminal law. I am equally confident that the decision to address Mr. Abdulmutallab's actions through our criminal justice system has not, and will not, compromise our ability to obtain information needed to detect and prevent future attacks.'
"Similarly, Holder has repeatedly asserted that our civilian court system is as good as--indeed better than--the military commission system when it comes to convicting terrorists and protecting sensitive information. For instance, when asked at his last oversight hearing whether civilian court rules governing the admissibility of evidence might make it difficult to obtain a conviction of KSM and other 9/11 conspirators, Holder boldly proclaimed that "failure is not an option.'
"Holder's Padilla brief clearly shows an appreciation that charging a terrorist in civilian court carries risks, most notably the risk of ineffective interrogation. But he withheld those views from the committee prior to confirmation, then tried to convince us, as the Attorney General, that there really is no risk at all.
"It is important to note that Holder was a party to the Padilla brief, not an attorney-of-record. Thus, unlike some other DOJ lawyers who have represented detainees and may, therefore, be able to claim that they do not personally share their client's views, we must assume that the policy and legal views Holder expressed, as a amicus party before the Supreme Court, must be his own.
"The Chairman has scheduled a DOJ oversight hearing for March 23. Attorney General Holder will have a lot of questions to answer then about why he failed to disclose his prior representation of Padilla to the committee, and, more importantly, why he has changed his views about the national security risks that we face because of this Administration's handling of terrorism cases."