[Congressional Record (Bound Edition), Volume 155 (2009), Part 1]
[Senate]
[Pages 516-518]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF ERIC HOLDER

  Mr. DURBIN. Mr. President, last month, President-elect Obama 
designated Eric Holder to be the next Attorney General of the United 
States. When President-elect Obama made this choice, there was virtual 
universal praise from both sides of the aisle.
  Republican Orrin Hatch of Utah, the former chair of the Senate 
Judiciary Committee, said Eric Holder was ``an excellent choice,'' in 
his words, and that ``I intend to support him.'' My colleague, Senator 
Jeff Sessions of Alabama, said, ``I think his instincts on law and 
order are good'' and that he was ``disposed to support'' Eric Holder. 
Senator Tom Coburn of Oklahoma said: ``I think it's a good choice.''
  It is not hard to see why the initial response to Eric Holder's 
selection was so positive. After all, Mr. Holder had been confirmed 
unanimously by the Senate in 1997 for the position of Deputy Attorney 
General.
  As the No. 2 person at the Justice Department, Mr. Holder supported 
broadening the authority of independent counsel Ken Starr, a difficult 
decision that was criticized by many Democrats. Mr. Starr's 
investigation led to the impeachment of President Clinton. And Mr. 
Holder recommended the appointment of a special prosecutor to 
investigate Interior Secretary Bruce Babbitt, a member of President 
Clinton's Cabinet.
  Earlier in his career, Eric Holder had been appointed by President 
Ronald Reagan to serve as a judge. He was later appointed by President 
Clinton to be the U.S. attorney in Washington, DC. In that position, he 
earned a reputation for independence. He prosecuted public officials of 
both political parties during the 12 years he served as a career 
prosecutor in the Justice Department's Public Integrity Section.
  So it is no wonder Mr. Holder's nomination to serve as Attorney 
General was met initially with strong bipartisan praise.
  Unfortunately, some Senators are now questioning the character of 
Eric Holder. What has happened? Why the change? Why the initial 
positive reaction of a man who has served as a prosecutor, as a judge, 
as the No. 2 man in the Department of Justice, someone who has faced 
thousands of decisions, a person who was first appointed under a 
Republican President, then a Democratic President? Why this change?
  Well, it is attributable in part to someone who has surfaced again on 
the American political scene and has been very vocal in his criticism 
of Eric Holder. That person is Karl Rove. I am sure we all recall Karl 
Rove. He used to be President Bush's top political strategist. Today he 
works as a high-priced political consultant.
  In a TV interview last month, Mr. Rove called Eric Holder ``the one 
controversial nominee'' among President-elect Obama's Cabinet choices. 
A Washington Post reporter who had been covering the Holder nomination 
said in an interview:

       Word on the street is that Karl Rove is going to be helping 
     lead the fight against Eric Holder when his nomination for 
     Attorney General heads up to the Senate.

  That is unfortunate. I am confident, however, that at the end of the 
day, when Eric Holder comes before the Senate Judiciary Committee this 
week for his nomination hearing, he will answer the questions directly 
and show the Senate and the American people that he is an excellent 
choice to be our next Attorney General.
  I met with Eric Holder in my office last month. I had similar 
meetings with President Bush's Attorney General nominees: Michael 
Mukasey, Alberto Gonzales, and John Ashcroft.
  In my meetings with all four of these nominees, I asked each of them 
about their views on issues that were central to the mission of the 
Department of Justice. I asked them about a variety of different 
issues: human rights, civil rights, civil liberties, national security, 
and access to justice. I tried to take the measure of each man, and to 
gain a sense of whether they would have the independence and integrity 
for the job.
  In my opinion, Eric Holder stood head and shoulders above the others. 
Let's take one example, but a critically important example, the issue 
of torture.
  The late historian Arthur Schlesinger, Jr., said this about the 
torture policy of the Bush administration:

       No position taken has done more damage to the American 
     reputation in the world--ever.

  Historian Schlesinger, of course, has written about the American 
history of the 19th and 20th centuries, and I think he understood as 
much if not more than others that some of the graphic scenes and 
details of torture under the Bush administration have created, 
unfortunately, sad memories among people across the world.
  Sadly, that policy of torture was aided and abetted by the last two 
Attorneys General. Instead of defending the rule of law, the Bush 
administration's Justice Department set aside our treaty obligations 
and redefined torture with evasive words and with a wink and a nod.
  During his confirmation hearings, Gonzales told me it was legally 
permissible for the United States of America to subject detainees to 
cruel, inhuman, and degrading treatment. But cruel, inhuman, and 
degrading treatment are clearly prohibited by the Torture Convention, a 
treaty we ratified and are bound to obey.
  I drafted legislation to overturn this Bush administration policy and 
make it clear that cruel, inhuman, or degrading treatment is prohibited 
in all circumstances. I will tell my colleagues

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that my bill did not pass, but a virtually identical bill introduced by 
Senator John McCain, which I was proud to cosponsor, did pass 
overwhelmingly. It was obvious that Senator McCain was the right person 
to carry this issue. His experience as a detainee and prisoner of war 
during the Vietnam conflict gave him more credence on this issue than 
anybody else on the Senate floor. He stood and spoke not only for the 
American people but for a great tradition in American law. He was 
criticized and there were objections from Vice President Cheney and 
others, but Senator McCain's position prevailed in the Senate.
  After Alberto Gonzales departed as Attorney General under a cloud of 
scandal, I had hoped that the Justice Department would be able to turn 
a new page with the nomination of Michael Mukasey. He had served as a 
Federal district court judge. He was an accomplished attorney. He was 
someone who I thought came to this job with the capacity to put 
perspective on some of the most contentious issues. During his 
confirmation hearing on the second day, I asked Mr. Mukasey a simple, 
straightforward question: Is the torture technique known as 
waterboarding legal?
  Now, waterboarding is a torture technique that was used as long ago 
as the Spanish Inquisition in the 15th century. Following World War II, 
the United States prosecuted Japanese military personnel as war 
criminals when they were accused of waterboarding U.S. prisoners. The 
Judge Advocates General, the highest ranking lawyers in the U.S. 
military, told me and testified unequivocally that waterboarding was 
illegal. But Mr. Mukasey, at his confirmation hearing for Attorney 
General, refused to answer my question and to this day still refuses to 
acknowledge that waterboarding is torture.
  President-elect Barack Obama has made it clear that he will reclaim 
America's role as champion and defender of fundamental human rights. He 
said--and I quote my former Senate colleague, President-elect Obama:

       No administration should allow the use of torture, 
     including so-called `enhanced interrogation techniques' like 
     water-boarding, head-slapping, and extreme temperatures. It's 
     time that we had a Department of Justice that upholds the 
     rule of law and American values, instead of finding ways to 
     enable the President to subvert them. No more political 
     parsing or legal loopholes.

  I believe Eric Holder will fulfill the President-elect's commitment. 
When I met with Mr. Holder, I asked him the same simple question I had 
asked Michael Mukasey: Is waterboarding illegal? Without hesitation, 
Mr. Holder looked me straight in the eye and said--and I quote--
``Senator, waterboarding is torture.''
  After hours of questioning Michael Mukasey on that simple, obvious 
fact when he refused to answer straightforwardly, here we have a 
nominee for Attorney General who has made it clear that America is 
going to return to the values we have held dear for generations, and I 
think returning to those values will help restore our position and 
credence in the world.
  Indeed, Mr. Holder has spoken out repeatedly about this issue--not 
just in meeting with me privately. For example, last June in a speech 
before the American Constitution Society he said:

       Our needlessly abusive and unlawful practices in the ``war 
     on terror'' have diminished our standing in the world 
     community and made us less, rather than more, safe.

  Alberto Gonzales, the former Attorney General, said the United States 
could engage in cruel, inhuman, and degrading treatment. Listen to what 
Eric Holder said during his speech to the American Constitution 
Society:

       We must declare without qualification that it is the law, 
     policy, and practice of the United States Government that we 
     do not torture people and we do not subject people to cruel, 
     inhuman, or degrading treatment.

  What a stark contrast from the evasive words we heard from Alberto 
Gonzales and the refusal of Attorney General Michael Mukasey to address 
this issue directly.
  I can assure my colleagues that Eric Holder will bring about a 
welcome change in the Department of Justice and a welcome change that 
our Nation is anxious to see. He possesses the experience, the wisdom, 
and the integrity to be an outstanding Attorney General. He is a leader 
who can rebuild the morale within the Justice Department and restore 
faith among the American people in this important agency. We all 
remember that chapter in the history of the Department of Justice when 
so many U.S. attorneys were unceremoniously dismissed from their 
positions, many of whom had never had any criticism leveled at them for 
their professional work. Questions have been raised over and over as to 
whether this was just a political move or what. The fact is, I am sure 
it took its toll on the morale of the department. We have a chance with 
Eric Holder to restore it. It is critical because without faith in our 
system of justice, our democracy is in danger.
  I wish to address one final matter that some of my Republican 
colleagues have talked about: the pardon of Marc Rich in the closing 
days of the Clinton administration. In January of 2001 President 
Clinton issued a pardon for Marc Rich, who had been convicted of tax 
evasion and who had fled the country. Presidents have the power to 
issue pardons and commutations, and they seek the advice of the Justice 
Department on which requests to grant and which to reject. On January 
19, 2001, the last full day of the Clinton Presidency, the White House 
called Eric Holder at the Justice Department to ask him his opinion 
about Marc Rich. Without spending much time examining the pardon 
request, Eric Holder indicated he did not oppose it.
  In retrospect, when I asked him directly in my office, Mr. Holder 
admitted that comment was a mistake. He acknowledged that the Rich 
pardon should not have been granted and that he should have sought the 
input of other Justice Department officials about this recommendation. 
It was a lapse in judgment, and Mr. Holder has openly acknowledged it.
  Now, many of us who have spoken out on the Senate floor have 
occasionally said things we wish we hadn't said. We are, as a matter of 
course, given permission to revise and extend our remarks if we make a 
mistake, but it is rare in public life. Senators do it, Congressmen do 
it, and occasionally elected officials do it--to just say flat out, ``I 
made a mistake.'' Eric Holder has been open and honest about that. I 
value that. In the thousands of decisions he faced as the No. 2 man in 
the Justice Department, there are only a handful that have even raised 
a question, and he has been open and honest in saying that this was not 
the right thing to do.
  There is probably no one in America more disappointed by that pardon 
of Marc Rich than the man who prosecuted him, James Comey. You may 
remember Mr. Comey; I sure do. He is a Republican who served for a few 
years as the Deputy Attorney General at the Justice Department under 
John Ashcroft. He was the one who stood up to President Bush and 
refused to authorize the President's secret surveillance program during 
the critical period when John Ashcroft was hospitalized and Mr. Comey 
served briefly as the Acting Attorney General. Earlier in his career as 
an assistant U.S. attorney in New York, Mr. Comey was the prosecutor in 
charge of the Marc Rich case. He knows the case better than any of us. 
He strongly opposed the pardon of Marc Rich by President Bill Clinton, 
as did his colleagues in the U.S. Attorney's Office in New York. 
However, Mr. Comey sent a letter to the Senate Judiciary Committee a 
few weeks ago in support of the nomination of Eric Holder. I wish to 
read from it. He said:

       I have come to believe that Mr. Holder's role in the Rich 
     and [co-defendant Pincus] Green pardons was a huge 
     misjudgment--

  Mr. Comey wrote to the committee--

     one for which he has, appropriately, paid dearly in 
     reputation.

  Mr. Comey went on to say:

       Yet I hope very much he is confirmed. I know a lot of good 
     people who have made significant mistakes. I think Mr. 
     Holder's may actually make him a better steward of the 
     Department of Justice because he has learned a hard lesson 
     about protecting the integrity of that great institution from 
     political fixers. I'm not suggesting errors of

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     judgment are qualification for high office, but in this case, 
     where the nominee is a smart, decent, humble man who knows 
     and loves the department and has demonstrated his commitment 
     to the rule of law across an entire career, the error should 
     not disqualify him. Eric Holder should be confirmed as 
     Attorney General.

  That statement of support is from James Comey, a Republican, and the 
chief prosecutor of Marc Rich who was entrusted with major 
responsibilities in the Department of Justice under President Bush. He 
is a man who knows that Department very well.
  Mr. Comey's opinion is also shared by Larry Thompson, another 
prominent Republican who served for several years as Deputy Attorney 
General under President Bush. Mr. Thompson had this to say about Eric 
Holder and the Rich pardon:

       There's no way you can have a high-profile job in 
     Washington like the deputy attorney general without 
     attracting some kind of controversy. That matter has been 
     fully investigated, and it should be put behind him.

  Let me also read the statement of another high-profile Republican, Ed 
Rogers, who served in two Republican White Houses. Mr. Rogers said:

       Under the Constitution, the President's authority to pardon 
     is unlimited. There was no deceit or malfeasance by Holder. 
     Everyone knows this was Bill Clinton's initiative. Eric 
     Holder is innocent.

  Then he added:

     the Rich pardon is no bar to Eric Holder being an effective 
     Attorney General--even though we Republicans and some in the 
     media will enjoy rehashing it.

  You can question Eric Holder's judgment in the Marc Rich case, but 
you can't question his integrity, his independence, and his character.
  A few days ago the Senate Judiciary Committee received a letter of 
support for Eric Holder from 10 prominent Republican lawyers, including 
former Attorney General William Barr and former chief counsel to 
Senator Arlen Specter of Pennsylvania, Michael O'Neill. This is what 
the letter said:

       Due to his character and experience, Eric today enjoys the 
     endorsement of literally thousands of law enforcement 
     officials from across the country, including NAPO (the 
     National Association of Police Organizations), NDAA (National 
     District Attorneys Association), PERF (Police Executive 
     Research Forum), NSA (National Sheriffs' Association), NAAUSA 
     (National Association of Assistant U.S. Attorneys), and NOBLE 
     (National Organization of Black Law Enforcement Executives). 
     . . . As former federal prosecutors and senior officials of 
     the Department of Justice we are profoundly aware of the 
     challenges that the Department and the country are facing. 
     Eric Holder is the right man at the right time to protect our 
     citizens in the critical years ahead.

  It is worth noting that Eric Holder also has the public support of 
former FBI Director Louie Freeh, as well as the National Fraternal 
Order of Police, which is the world's largest organization of sworn law 
enforcement officers.
  One final point: Eric Holder is a historic selection. If confirmed, 
he would be the first African-American Attorney General in our Nation's 
history. When I was growing up, there were laws in some States that 
prevented African Americans from drinking out of the same water 
fountains as Whites, attending the same schools, and using the same 
restrooms, restaurants, swimming pools, and other public 
accommodations. It is one more measure of how far America has come that 
we now have a chance to confirm a distinguished African American to be 
the top law enforcement officer in America.
  After 8 years of the Justice Department trampling the Constitution 
and often putting politics over principle, we now have a chance to 
confirm a nominee with strong bipartisan support who can restore the 
Justice Department to its rightful role as the protector of our laws 
and renew America's faith in our system of justice.
  This week, before the Senate Judiciary Committee, on which the 
Presiding Officer also serves--we will have an opportunity to ask 
questions of Mr. Holder. I will be asking him many of the same 
questions I have asked of former Senator Ashcroft, Mr. Gonzales, and 
Mr. Mukasey.
  The answers, I am sure, will be significantly different, showing that 
we are about to launch a significant change in America, a change which 
the American people voted for overwhelmingly in November and a change 
that will be carried forward in a very positive way at the Department 
of Justice by Eric Holder as our next Attorney General.
  I yield the floor.

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