[Congressional Record Volume 155, Number 19 (Friday, January 30, 2009)]
[Senate]
[Pages S1103-S1108]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ERIC HOLDER

  Mr. CORNYN. Mr. President, on Monday, the Senate will take up the 
nomination of Eric Holder to be the next Attorney General of the United 
States. I

[[Page S1104]]

serve on the Senate Judiciary Committee, and that committee held 
hearings regarding Mr. Holder's confirmation. Regrettably, last 
Wednesday, when the Senate Judiciary Committee voted that nomination 
out of the committee, I was a ``no'' vote.
  I wish to say that originally I approached this nomination with an 
open mind and a determination to ask--indeed to demand--answers to 
legitimate questions. I think that is the responsibility of each 
Senator under the Constitution in performing our duties of advice and 
consent. I also think it is important for me to explain why, even 
though I approached that nomination with an open mind and a 
predisposition to vote for Mr. Holder's nomination, I ultimately 
concluded, as a result of some of the evidence, which I will lay out, I 
could not do so in good conscience.
  Mr. Holder, of course, served as Deputy Attorney General during the 
Clinton administration, and if there is any public service that is more 
illustrative of how someone will actually perform as Attorney General, 
I think it would be in performing as Deputy Attorney General. The 
Deputy Attorney General is the one job on Earth most similar to the job 
for which Mr. Holder will be confirmed on Monday. It is rare to have 
such a clear picture of the job a nominee will do if confirmed. Thus, I 
reviewed Mr. Holder's record with great care, as you might expect, and 
also with great interest.
  Unfortunately, two of Mr. Holder's actions as Deputy Attorney 
General: the recommendation that President Clinton commute the 
sentences of 16 Puerto Rican separatist terrorists and the 
recommendation that President Clinton pardon the billionaire fugitive 
Marc Rich, raised serious questions about Mr. Holder's judgment and 
independence from the wishes of his political sponsors--two key 
qualities I would hope the Senate would want for any Attorney General, 
independence, adherence and fidelity only to the rule of law--and good 
judgment.
  Two other aspects of Mr. Holder's record also raised concerns for me. 
Mr. Holder's record demonstrates a failure to understand the profound 
threat posed by radical Islamic terrorism; and, second, Mr. Holder has 
often appeared to be hostile to the second amendment, to the 
constitutional right to keep and bear arms.
  As I said, in the Judiciary Committee, Mr. Holder failed to answer my 
questions, regrettably, and the questions of my colleagues in a way 
that alleviated these concerns. As I will explain, I indeed found Mr. 
Holder's answers to be nothing short of evasive in some key respects. 
Because I have doubts about Mr. Holder's judgment and independence, I 
am opposing this nomination, and the four reasons, as I tried earlier 
to summarize but which I will repeat are Mr. Holder's role in the FALN 
and Los Macheteros commutations, his role in the Marc Rich pardon, his 
misjudgments and shifting opinions with regard to the war on terror, 
and his record of hostility toward the individual's right to keep and 
bear arms.
  First, I would ask my colleagues to consider Mr. Holder's role in the 
FALN and Los Macheteros commutations. In August 1999, President Clinton 
offered clemency to 16 members of two Puerto Rican separatist terrorist 
organizations, FALN and Los Macheteros. Deputy Attorney General Eric 
Holder made the recommendation that he should do so. The FALN was a 
clandestine terrorist group devoted to bringing about the independence 
of Puerto Rico through violent means. Its members waged open war on the 
United States, with more than 150 bombings, arsons, kidnappings, prison 
escapes, threats and intimidation, which resulted in the deaths of at 
least six people and injuries to many more between 1974 and 1983.
  The most gruesome attack was in 1975 in lower Manhattan. Timed to 
explode during the lunch hour, the bomb decapitated 1 of the 4 people 
killed and injured another 60. In another attack in Puerto Rico, Los 
Macheteros opened fire on a bus of U.S. sailors. Two American sailors 
were killed and nine were wounded. Fortunately, much of the leadership 
and membership of these terrorist groups was captured and brought to 
justice in the late 1970s and early 1980s. By the late 1980s, the worst 
of the FALN's reign of terror was over.
  In the early 1990s, sympathetic activists petitioned for clemency on 
behalf of these terrorists, and it was an easy call for the pardon 
attorney. The pardon attorney is the attorney at the Department of 
Justice who reviews clemency requests and makes recommendations. They 
make sure the record is thoroughly reviewed and, as I said, then make 
recommendations. The fact is these unrepentant terrorists who were 
given clemency by the Clinton administration never even petitioned for 
clemency. They never even asked for it.
  Pardon attorney Margaret Love, who worked for then-Deputy Attorney 
General Jamie Gorelick, recommended against clemency for any of these 
prisoners, and a recommendation was transmitted to the President. 
Shortly thereafter, when Eric Holder became Deputy Attorney General, he 
rescinded that recommendation opposing clemency and recommended that 
President Clinton grant clemency to these unrepentant terrorists.
  Strangely, Mr. Holder still stands behind this recommendation, saying 
he considered it reasonable. But the reasons he gives are not 
persuasive. Mr. Holder claims these men were not linked to violence. 
That is false. These men were active members of a terrorist 
organization that had committed dozens of violent crimes, including, as 
I mentioned earlier, bombings, murder, and arson. It is true the 
particular crimes for which these individuals were convicted were not, 
in and of themselves, violent crimes, but by that standard, Saddam 
Hussein did not commit crimes, unless he pulled the trigger himself. 
Likewise, Osama bin Laden, responsible for the deaths of thousands of 
innocent American citizens, would not be linked to crime under the 
standard Mr. Holder posits.
  There is ample evidence that at least some of the men for whom Eric 
Holder recommended clemency were, in fact, murderers. These 
commutations were, at the time, widely believed to have some political 
motivation. Indeed, the Clinton White House discussed how these 
clemencies would affect then-Vice President Gore's political standing 
within the Puerto Rican community. For this reason, I believe a full 
accounting of whom Mr. Holder met with, what they discussed, and what 
went into his decision to recommend these commutations is in order.
  But there is another equally important reason that these questions 
must be answered. The victims of the FALN and the Los Macheteros 
deserve answers. I would encourage all my colleagues, before voting, to 
review the testimony of Joseph Connor, whose father was killed in the 
bombing in lower Manhattan in 1975. Mr. Connor testified that Mr. 
Holder did not consult with him, did not inform him or his family or 
other victims before recommending that the President set FALN 
terrorists free.

  I cannot vote for Mr. Holder until I can explain my vote to Joseph 
Connor. Because Mr. Holder has failed to answer my questions about the 
FALN commutations, I do not have an explanation I can give to Mr. 
Connor.
  One of the reasons Mr. Holder has refused to answer some questions 
is, it appears he is invoking executive privilege. But it is very odd 
because this apparent assertion of executive privilege comes despite 
the fact that President Clinton waived executive privilege for all 
testimony concerning these commutations. That is in the record of the 
hearing before the Judiciary Committee. I think it is unfortunate that 
the current administration's first apparent assertion of executive 
privilege seems to come for no purpose other than to protect Mr. 
Holder's record from scrutiny.
  As I said, in 2001, President Clinton waived executive privilege with 
regard to the commutations and pardons he granted. In a letter to the 
House of Representatives, President Clinton's lawyer explicitly stated 
President Clinton ``will interpose no executive privilege objections to 
the testimony of his former staff concerning these pardons, or to other 
pardons and commutations he granted.''
  Nonetheless, Mr. Holder continues to assert he is not authorized to 
testify about the so-called options memorandum, which is part of the 
record underlying these commutations. Instead of forthright answers 
about Mr. Holder's decision to recommend these

[[Page S1105]]

commutations or present the options memo to then-President Clinton, he 
has repeatedly refused to answer questions submitted by Judiciary 
Committee members, including me.
  For example, I asked Mr. Holder whether he was aware at the time he 
made his commutation recommendation of the leadership positions of 
three of these terrorists and their alleged involvement of another 
murder of a U.S. Navy sailor--more than one. Mr. Holder responded that 
this information ``was included in [their] presentence reports which in 
the ordinary course would be requested and reviewed by the Office of 
Pardon Attorney as one of the first investigative steps.''
  This answer, I have to say, is a very lawyerly answer, but it is 
nonresponsive to my question. It avoids the question of whether he was 
aware of these matters when he recommended commutation. In fact, 
Chairman Leahy and Ranking Member Specter sent a letter to the 
Department of Justice citing President Clinton's waiver of executive 
privilege and requesting the relevant documents regarding the clemency 
decision. This request, inexplicably, has been denied.
  Because President Clinton has waived this privilege, this assertion 
of privilege is apparently now being made by the present administration 
of President Obama. Of course, executive privilege only belongs to the 
principal, to the client--in this case the Executive--so it has to be 
either President Clinton or President Obama, and clearly President 
Clinton has waived it.
  The Justice Department has apparently advanced the argument that the 
Clinton waiver applied only to testimony and not to documents, but Mr. 
Holder's testimony about the options paper is clearly testimony and not 
a document. Thus, his assertion of privilege is indeed broader than the 
most restrictive reading of the Clinton waiver. So who is denying the 
Holder authorization to testify about the options paper? Apparently, I 
conclude, it could only be President Obama.
  Assertions of executive privilege, as we know, raise questions about 
the balance of power between the executive branch and the legislative 
branch. The Executive's interest in secrecy and confidential 
communications, and Congress's right to information, particularly in 
the context of a confirmation hearing when performing our 
constitutional duty of advice and consent, are in tension and, in this 
case, conflict. It is up to the branches to negotiate and work together 
to take both interests into account and to make public relevant 
information that bears on the qualifications and experience of members 
of the President's Cabinet--in this instance, Mr. Holder. I believe 
President Obama owes the American people--consistent with his ideals on 
open government, which I enthusiastically support--to make his 
assertion of privilege plainly and in the light of day.
  Moreover, it is hard to imagine any significant executive branch 
interest in keeping this information secret. These documents are a 
decade old and concern crimes committed about 30 years ago. President 
Clinton, of course, is no longer in office, and he has waived the 
privilege. The context of these documents has been alluded to in U.S. 
major newspapers and even by Mr. Holder himself. So it seems to me 
there is no further executive branch interest in continuing to hide 
these documents, only a desire to shield Mr. Holder from hard 
questions.
  In short, Mr. Holder's responses to questions regarding these 
commutations has been evasive. The Senate and the American people 
deserve forthright answers to questions that pertain to Mr. Holder's 
judgment, his independence, his seriousness of mind when it comes to 
the threat of Islamic extremism, and his qualifications to be Attorney 
General.
  I also believe the families of the victims of the terrorist acts by 
the FALN and Los Macheteros terrorists deserve a full accounting for 
the release of terrorists who were partly to blame for their loved 
one's deaths. Instead of providing a forthright accounting, Mr. Holder 
has simply dodged the question, hidden behind an apparent claim of 
executive privilege, and refused to cooperate with the Judiciary 
Committee in getting to the bottom of some of these matters.
  The next concern I have has to do with the Rich pardon I alluded to 
at the very beginning. Less than 2 years after the controversy 
surrounding the FALN commutations, on the very last night of the 
Clinton administration, Mr. Holder made a very similar error of 
judgment when he recommended that President Clinton pardon the 
notorious fugitive by the name of Marc Rich. At the time, Mr. Rich was 
No. 6 on the FBI's Ten Most Wanted List.
  In 1983, then-U.S. attorney Rudy Giuliani in the Southern District of 
New York, obtained an indictment of international commodities trader 
Marc Rich and his business partner, Pincus Green. The indictment 
charged 65 counts of tax evasion, racketeering, and trading with the 
enemy.
  Specific charges include illegally trading with the Ayatollah 
Khomeini's Iranian terrorist regime in violation of U.S. energy laws 
and a trade embargo against Iran.
  Indeed, Mr. Rich made a fortune trading with the Ayatollah's regime 
at the same time that 52 American diplomats were still being held 
hostage in the U.S. Embassy in Iran. Mr. Rich profited by trading with 
Cuba, Libya, and South Africa during apartheid--all despite U.S. 
embargoes. Rather than face these charges head on, Mr. Rich simply fled 
to Switzerland where he remained a fugitive for 17 years. Federal law 
enforcement, with help from the CIA, the NSA, and other agencies, 
expended substantial resources in an effort to apprehend Mr. Rich. 
These efforts included extradition requests and attempts by U.S. 
marshals to arrest him abroad. Rich refused to return to the United 
States, despite an offer by prosecutors to drop the racketeering 
charges in exchange for his return.
  In an effort to avoid his extradition, though, Mr. Rich went so far 
as to renounce his U.S. citizenship, and he tried to become a citizen 
of Bolivia. It is hard to imagine a more inappropriate candidate for a 
pardon than a fugitive from justice accused of trading with the enemy. 
Mr. Rich's own lawyer told him he ``spit on the American flag'' by 
avoiding the jurisdiction of U.S. courts.
  According to those involved in the pardon process, including 
President Clinton and Marc Rich's lawyer, Eric Holder was more 
responsible for this controversial decision than any other member of 
the Clinton administration with the exception of the President himself.
  In fact, on the last evening of the Clinton administration, White 
House counsel called Mr. Holder to solicit his views on the Rich pardon 
application. As Deputy Attorney General, Holder was effectively 
speaking for the entire Department of Justice during this crucial phone 
call.

  Disregarding the strongly held views of hundreds of Department of 
Justice prosecutors and FBI agents who worked nearly two decades to 
bring Marc Rich to justice, Mr. Holder told Nolan he was ``neutral, 
leaning to favorable.''
  What is crucial to understand is that Mr. Holder was not just 
speaking for himself but the entire Department of Justice. But with 
this recommendation from the Deputy Attorney General, President Clinton 
granted the Rich pardon, one of his last and most despicable actions.
  Even after having ample opportunity to explain himself, it is unclear 
what Mr. Holder's rationale was for recommending this despicable 
pardon, as I said, which former FBI Director Louis Freeh called a 
``corrupt act'' on the part of President Clinton.
  Mr. Holder has admitted he made a mistake, which is commendable. But 
never in a full day of hearings and in answers to several written 
questions did Mr. Holder offer a persuasive reason for supporting this 
pardon--other than, apparently, caving in to pressure from the Clinton 
White House. Mr. Holder defends himself by claiming he was naive; and, 
again, we have all made mistakes. I grant that. He now admits the Rich 
pardon was a mistake and promises he will never make a similar mistake 
again. In fact, he takes the position he will be a better Attorney 
General because of learning from this mistake.
  But this pledge is difficult to square with the fact that Mr. Holder 
had essentially made the same error in judgment less than 2 years 
before with the

[[Page S1106]]

FALN commutation. I am also concerned that Mr. Holder's testimony 
regarding key conversations and meetings on the Rich pardon seem to 
contradict the recollections of members of the Marc Rich legal and 
lobbying team.
  In the fall of 2000, there was an e-mail from former White House 
Counsel Jack Quinn--who was representing Rich in his quest for a 
pardon--to the rest of the Rich legal team indicating Mr. Rich told Mr. 
Quinn to ``go straight to the White House.''
  This suggests that Holder was telling Quinn to bypass the typical 
pardon process through the Department of Justice, where opponents of 
the Rich pardon were legion. Mr. Holder disputes this interpretation, 
arguing that an application sent to the White House would be forwarded 
to the Department of Justice in any case. Whether this is true, it is 
indisputable that the prosecutors in the Southern District of New York 
who indicted Marc Rich for the crimes I mentioned earlier--they were 
never asked about their views on the Rich pardon, as they would have 
been if the normal pardon process had been followed at the Department 
of Justice.
  If Mr. Holder advised the Rich pardon team on strategic matters, it 
would be a serious violation of his duties as the second highest law 
enforcement officer in the land. Such aid would be particularly 
disappointing because a House committee had specifically reprimanded 
Mr. Holder for improperly aiding and facilitating the clemency 
application of the FALN terrorists 2 years earlier. It is not disputed, 
though, that the Rich pardon application was fast-tracked and sheltered 
from its many opponents.
  It is clear to me that Mr. Holder played a role in clearing the way 
for this pardon and, at a minimum, he knew it had not been 
appropriately handled through the Department of Justice pardon process.
  Nevertheless, he declared himself as ``neutral, leaning favorable'' 
when the White House asked him about his opinion.
  In summary, Mr. Holder appears once again to simply have given 
President Clinton the answer he wanted. The Rich pardon recommendation 
is the most recent major action by Mr. Holder as a public official. I 
believe the evidence casts doubt on his independence and his judgment 
once again.
  My greatest concerns, however, are that Mr. Holder fails to fully 
understand the unique challenges and threats posed to our country by 
radical Islamic terrorism. I want to explain why I say that. I agree 
with Mr. Holder when he says the most important duty of the Attorney 
General is to protect America from another terrorist attack. But his 
public statements regarding the war on terror too often betray a 
willingness to advance ideological rhetoric without fully appreciating 
the sensitivity and the complexity of this issue.
  I find it especially troubling that Mr. Holder's legal views on 
national security have seemed to shift, depending upon the political 
mood of the day and the audience to whom he is speaking.
  Shortly after the terrorist attacks of 9/11, Mr. Holder voiced 
support for the Bush administration's interpretation of the status of 
terrorist detainees. Mr. Holder said, in January 2002, that al-Qaida 
terrorists:

       . . . are not, in fact, people entitled to the protection 
     of the Geneva Convention. They are not prisoners of war.

  He went on to endorse indefinite detention of terrorist prisoners at 
Guantanamo Bay and argued that such prisoners should not be afforded 
Geneva Conventions protections so that they could, in fact, be 
interrogated to provide actionable intelligence.
  He did insist, as did the Bush administration at the time, that these 
detainees should be treated humanely, though. But more recently, as the 
political winds have shifted, Mr. Holder has chastised the Bush 
administration for policies he now seems to believe defy the law.
  There is a disturbing Jekyll-and-Hyde quality to Mr. Holder's legal 
pronouncements concerning our counterterrorism policies. I wish to 
quote from an Associated Press article entitled ``Obama AG pick 
defended Guantanamo policy,'' dated November 22, 2008. I ask unanimous 
consent that this article be printed in the Record following my 
remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. CORNYN. Asked whether terrorism suspects could be held forever, 
Holder responded:

       It seems to me that you can think of these people as 
     combatants and we are in the middle of a war.

  Holder said in a CNN interview in January 2002:

       And it seems to me that you could probably say, looking at 
     precedent, that you are going to detain these people until 
     the war is over, if that is ultimately what we wanted to do.

  Just weeks later, Holder told CNN he did not believe al-Qaida 
suspects qualified as prisoners of war under the Geneva Conventions.

       One of the things that we clearly want to do with these 
     prisoners is to have an ability to interrogate them and find 
     out what their future plans might be, where other cells are 
     located. Under the Geneva Convention, you are really limited 
     to the amount of information that you can elicit from people.

  Holder said it was important to treat detainees humanely, but he said 
they:

       . . . are not, in fact, people entitled to the protection 
     of the Geneva Convention. They are not prisoners of war.

  He also downplayed criticism that prisoners were being mistreated.

       Those in Europe and other places who are concerned about 
     the treatment of al-Qaida members should come to Camp X-ray 
     and see how people are, in fact, being treated.

  Those were essentially the same arguments the Bush administration 
made with regard to Guantanamo Bay with regard to holding enemy 
combatants who wear no uniform, who do not obey the laws of war, and 
are not citizens of a state, a nation state, but, in fact, are a 
terrorist organization bent on killing innocent civilians here and 
abroad in an effort to pursue their ideology.
  Since then, however, these arguments have been heavily criticized, as 
we know, by human rights activists and leading Democrats and, 
inexplicably to me, Mr. Holder himself.
  He said in June of 2008:

       We must close our detention center at Guantanamo Bay.

  He said that in a speech to the American Constitution Society. He 
said:

       A great nation should not detain people, military or 
     civilian, in dark places beyond the reach of law. Guantanamo 
     Bay is an international embarrassment.

  Holder added he never thought he would see the day when the ``Supreme 
Court would have to order the President of the United States to treat 
detainees in accordance with the Geneva Convention.''
  These sharply contrasting legal conclusions were made, again 
inexplicably by one and the same person, Eric Holder, the nominee for 
the highest law enforcement officer in the United States. One can only 
wonder what he truly believes.
  In a 2008 speech to the liberal American Constitution Society, he 
attacked many of the same legal positions he once held as ``making a 
mockery of the rule of law.''
  In that same speech, Holder called for a ``reckoning'' over the Bush 
administration's ``unlawful practices in the war on terror.''
  He also accused the Bush administration of ``act[ing] in direct 
defiance of Federal law'' and railed against counterterrorism policies 
that he claimed ``violate international law and the United States 
Constitution.''
  In this way, Mr. Holder appears to have already publicly prejudged a 
potential prosecutorial question that may come before him as Attorney 
General, without knowing all the facts.
  Now, it is one thing to change your mind, but it is quite different 
to change your mind and then attack the very same position you once 
held as one that could only be held in bad faith, describing it as 
``making a mockery of the rule of law.''
  I can only conclude that as an act of pure cynicism, somebody who 
tells you, particularly a lawyer who takes a legal position he once 
embraced, as now only being able to be held in bad faith, is a person 
who has made a bad-faith legal argument at least once.
  The recent terrorist attacks in India, in Mumbai, have reminded 
Americans of the possibility of further attacks on U.S. soil or 
literally anywhere around the world. On November 26, last year, Mumbai, 
as we know, was ravaged by a gang of terrorists. One of the attackers

[[Page S1107]]

was captured while the rest were killed.
  More than 170 individuals died as a result of bombings and gunfire, 
including 6 Americans. If a U.S. city was targeted in the same way 
Mumbai was, or worse, biological, chemical, other even nuclear weapons 
being used, it is critical that we be able to obtain the intelligence 
from captured terrorists in order to assess whether any other imminent 
attacks are in the works.
  If we captured the terrorist in an ongoing attack on an American 
city, it is critically important that we not treat him as an ordinary 
criminal, with all the rights conferred by the Constitution on an 
American citizen. That, I believe, is one of the most important lessons 
we must recall and never forget from the tragedy of 9/11. To do so 
would effectively shut down the intelligence-gathering process and risk 
American lives.
  When this sort of unpredictable legal challenge arises in the war on 
terrorism, I wish to know whether the Eric Holder of 2002 or the Eric 
Holder of 2008 will be calling the shots. I was not encouraged by Mr. 
Holder's refusal to say he would authorize aggressive interrogation 
against terrorists, even if he knew that to do so would prevent a major 
attack on an American city.
  I also fear his recommendation for and continued endorsement of the 
FALN terrorist commutations is evidence of a failure to appreciate the 
continuing dangers of terrorism. At his confirmation hearing, Mr. 
Holder attempted to defend his poor judgment on the terrorist clemency 
issue by noting these commutations occurred long before 9/11.
  But as I reminded him, the FALN clemencies came after the first World 
Trade Center bombing of 1993, and the al-Qaida attacks on U.S. 
embassies in Kenya and Tanzania in 1998. As Senator Coburn rightly 
pointed out, his clemency recommendation came in the wake of the 1995 
Oklahoma City bombing right here on our own soil, the most horrific 
domestic terror attack that has ever occurred in our country.
  So I worry that Mr. Holder is not prepared to lead the Department of 
Justice at a moment when this Nation is waging an asymmetric war whose 
battlefield extends across the globe and even onto U.S. soil.

  If confirmed as the next Attorney General, Mr. Holder will inherit a 
complex legal architecture constructed to prevent terrorist attacks 
here in America and against our allies. That has admittedly been 
controversial. But I do not think anyone can question its effectiveness 
given the fact that we have not had another terrorist attack on our own 
soil since 9/11.
  If Mr. Holder is confirmed, I hope he will study these issues and 
treat them more carefully and with greater deliberation and greater 
soundness of judgment than he has demonstrated by his conflicting 
positions in 2002 and 2008. I hope that rather than shifting his 
opinions with the political winds, he will do his very best to uphold 
the rule of law and the Constitution of the United States while 
protecting the American people by making sure we are protected within 
the limits of our law from future attacks.
  The final issue I wish to mention is my concern about Mr. Holder's 
adherence to the Supreme Court ruling in the District of Columbia v. 
Heller, which interpreted an individual's right to keep and bear arms.
  That case reversed the District of Columbia's position that said 
individuals could not own firearms in their homes to protect their 
family and their possessions. I believe this is an important victory 
for the second amendment that must be protected and preserved.
  As the Nation's chief law enforcement officer, the Attorney General 
steers Federal gun law policy. The next Attorney General's views will 
shape not only law enforcement and prosecution priorities with regard 
to these issues but also the positions the Department of Justice takes 
in court. The views of the Justice Department will always be given 
considerable weight during the early stages of the law's development 
post-Heller.
  It is crucial the next Attorney General fully appreciate that an 
individual's right to keep and bear arms is a fundamental freedom 
protected by our Constitution. I was not comforted by Mr. Holder's 
vague assurance that Heller now is the law of the land because it 
cannot be reconciled with his long record of hostility to second 
amendment rights.
  Through his service as Deputy Attorney General and continuing to 
private practice, Mr. Holder has opposed the individual right to keep 
and bear arms. As Deputy Attorney General, he advocated for a wide 
variety of Federal gun restrictions. Mr. Holder's fierce hostility to 
gun rights continued after, as I say, his tenure as Deputy Attorney 
General.
  Mr. Holder feels so strongly about his opposition to gun rights that 
he, along with his former boss, the former Attorney General Janet Reno, 
filed a brief with the Supreme Court in the Heller case and argued 
against the individual rights approach to the second amendment and in 
favor of the view that the second amendment protects only militia 
activities.
  The Holder-Reno brief argued:

       The Second Amendment does not protect firearms possession 
     or use that is unrelated to participation in a well-regulated 
     militia.

  Although the individual rights approach prevailed in the Supreme 
Court and in the D.C. Circuit, Holder's brief described that approach 
as ``unwise'' and ``unjustified.'' The Holder-Reno brief goes on to 
argue that, even if the second amendment protects an individual right, 
that right should be narrowly construed.
  I worry it will be impossible for Mr. Holder to vigorously protect 
the second amendment rights of all Americans when he is so clearly 
opposed to the decision in the Heller case. I believe his hostility to 
the second amendment could lead the Department of Justice to take 
opposing positions to narrow that Supreme Court decision, particularly 
in court.
  Holder's Heller brief was directly at odds with the Court's opinion, 
as we have seen. Can we expect him to vigorously enforce and protect 
the constitutional right to bear arms, a right with which he personally 
and strenuously disagrees?
  Let me say, in conclusion, the Senate's advice and consent function 
requires us to carefully review a nominee's career, to ask hard 
questions, and to insist on satisfactory answers. I take this duty 
seriously, as I know all my colleagues do. With this nominee, I 
conclude that there are simply too many questions to which I have not 
yet heard a satisfactory answer.
  Why would he recommend clemency for unrepentant terrorists?
  Why would he recommend a pardon for a fugitive who made billions 
trading with America's enemies? Did Mr. Holder know one of the men 
whose clemency he recommended was linked to the murder of a U.S. sailor 
and, if so, did he communicate this to the White House? Why did Mr. 
Holder consult with Mr. Rich's prosecutors before recommending a 
pardon? Why is President Obama asserting executive privilege to prevent 
Mr. Holder from testifying about these commutations? Was Mr. Holder's 
judgment in the Rich and FLAN clemency decisions influenced by the 
outcome that he believed President Clinton wanted so badly? How can I 
explain to Joseph Connor, whose father was killed in the 1975 bombing 
in lower Manhattan, that the man who never spoke to his family before 
championing clemency for the men responsible for his father's murder 
will be the next Attorney General of the United States?
  Does Mr. Holder appreciate the gravity of the threats and the 
complexity of the legal issues posed by the war on terror? Can Mr. 
Holder be counted on to support and defend the constitutional right to 
keep and bear arms?
  I can't answer these questions with any degree of certainty. I regret 
to say I will vote against the nomination of Eric Holder to be the next 
Attorney General.

                               Exhibit 1

               Obama AG Pick Defended Guantanamo Policy)

                            (By Matt Apuzzo)

       Washington. Nov. 22, 2008--President-elect Barack Obama's 
     choice to become the next attorney general, Eric Holder, once 
     defended the Bush administration's arguments for holding 
     detainees at Guantanamo Bay, a position that runs counter to 
     his more recent comments--and to a signature policy of the 
     incoming administration.
       Holder, a confidant to Obama on legal issues, recently has 
     been a leading voice in the chorus calling to close 
     Guantanamo Bay, which he has described as an international 
     embarrassment. Likewise, Obama has called

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     it a ``sad chapter in American history,'' pledged to close 
     the island prison and criticized the Bush administration for 
     arguing that terrorism suspects aren't covered by standards 
     set by the Geneva Conventions.
       But in the months after the Sept. 11, 2001, terror attacks, 
     Holder defended the Bush administration's policies at 
     Guantanamo.
       Asked whether terrorism suspects could be held forever, 
     Holder responded: ``It seems to me you can think of these 
     people as combatants and we are in the middle of a war,'' 
     Holder said in a CNN interview in January 2002. ``And it 
     seems to me that you could probably say, looking at 
     precedent, that you are going to detain these people until 
     war is over, if that is ultimately what we wanted to do.''
       Just weeks later, Holder told CNN he didn't believe al-
     Qaida suspects qualified as prisoners of war under the Geneva 
     Conventions.
       ``One of the things we clearly want to do with these 
     prisoners is to have an ability to interrogate them and find 
     out what their future plans might be, where other cells are 
     located,'' said Holder, the former deputy attorney general 
     during the Clinton administration. ``Under the Geneva 
     Convention, you are really limited in the amount of 
     information that you can elicit from people.''
       Holder said it was important to treat detainees humanely. 
     But he said they ``are not, in fact, people entitled to the 
     protection of the Geneva Convention. They are not prisoners 
     of war.'' He also downplayed criticism that prisoners were 
     being mistreated.
       ``Those in Europe and other places who are concerned about 
     the treatment of al-Qaida members should come to Camp X-ray 
     and see how the people are, in fact, being treated,'' he 
     said.
       Those were essentially the arguments of the Bush 
     administration. Since then, those arguments have been 
     criticized by human rights groups, leading Democrats, and 
     Holder himself.
       ``We must close our detention center in Guantanamo Bay,'' 
     Holder told the American Constitution Society this summer. 
     ``A great nation should not detain people, military or 
     civilian, in dark places beyond the reach of law. Guantanamo 
     Bay is an international embarrassment.''
       Holder added that he never thought he'd see the day where 
     the ``Supreme Court would have to order the President of the 
     United States to treat detainees in accordance with the 
     Geneva Convention.''
       Those comments are in line with Obama's views. Holder did 
     not return e-mail and telephone messages seeking comment 
     about his earlier interviews. Brooke Anderson, a spokeswoman 
     in Obama's transition office, restated Obama's commitment to 
     opposing torture.
       ``Eric Holder shares that view,'' she said. ``The 
     president-elect has complete confidence that Eric Holder will 
     be an attorney general who will restore respect for the rule 
     of law and for our international commitments.''
       Obama's advisers are crafting plans to close Guantanamo 
     Bay, release some detainees and bring others to the United 
     States to face trial. One unanswered question, however, is 
     what to do with detainees who could not be prosecuted in 
     criminal courts without jeopardizing national security.
       The Justice Department under Holder almost certainly would 
     help answer that question.
       In introducing Holder and other members of his national 
     security team, Obama said he welcomed differences of opinion.
       ``I assembled this team because I am a strong believer in 
     strong personalities and strong opinions,'' he said. ``I 
     think that's how the best decisions are made.
       ``I will be responsible for the vision that this team 
     carries out,'' Obama said, ``and I will expect them to 
     implement that vision once decisions are made.''

  Mr. CORNYN. I yield the floor and suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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