Testimony on Eric Holder confirmation blocked, Specter says

By Josh Meyer

Jan. 16, 2009 12 AM PT

WASHINGTON — President-elect Barack Obama’s nominee for attorney general said unequivocally Thursday that waterboarding was torture, and he vowed to initiate an extensive and immediate “damage assessment” to fix fundamental problems in the Justice Department that he said were caused by the Bush administration.

Eric H. Holder Jr. told the Senate Judiciary Committee during a marathon confirmation hearing that the incoming Obama administration planned major changes in the interrogation of terrorism suspects and many other issues that would represent a significant break from the current policies and programs.

Early on, he was asked whether waterboarding, which simulates the feeling of drowning, constituted torture and was illegal.

“If you look at the history of the use of that technique,” Holder said, “we prosecuted our own soldiers for using it in Vietnam. . . . Waterboarding is torture.”

Waterboarding became a controversial symbol of the Bush administration’s war on terrorism after it admitted the technique was used several times by the CIA on high-value Al Qaeda suspects. In a further break with the Bush administration, Holder said the president’s role as commander in chief did not give him the right to circumvent the law -- on that or on other controversial counter-terrorism programs, including warrantless surveillance.

“No one is above the law,” Holder said, adding that it was “the obligation of the president . . . to follow those laws.”

Holder, 57, was equally emphatic about changing the internal dynamics of a Justice Department “badly shaken by allegations of improper political interference.” He said the damage done under President Bush appeared to go far beyond that of a credibility issue and into the operational workings of the department.

Holder said Obama officials already were scrutinizing the most controversial programs and policies of the Bush administration -- on interrogations, warrantless surveillance and military tribunals for terrorists -- that had undermined civil rights investigations and many other important responsibilities.

If confirmed, Holder said, he would immediately step up those efforts, saying urgency was needed because the problems were undermining not only the U.S. standing in the world but the administration of law enforcement and justice at home.

He said the biggest concern of the new administration was “to prevent those things from happening in the future.”

A former judge, prosecutor and deputy attorney general, Holder is expected to easily win Senate confirmation. But he was pressed about whether the new administration would use waterboarding to forcibly extract information from terrorists in a “ticking bomb” scenario.

“You would still refuse to condone aggressive interrogation techniques like waterboarding to get that information, which would, under my hypothetical, save perhaps tens of thousands of lives?” asked Sen. John Cornyn (R-Texas).

Holder repeatedly sidestepped the question, as did predecessor Michael B. Mukasey at his confirmation hearing last year. Each time Cornyn sought to pin him down, Holder said there were other, better ways of eliciting information from suspected terrorists.

Holder’s willingness to characterize waterboarding as torture was welcomed by Democrats on the panel and was part of a theme in which he pledged to be an attorney general for the people, someone who is not swayed by political interests.

“Law enforcement decisions and personnel actions must be untainted by partisanship,” Holder said. “Under my stewardship, the Department of Justice will serve justice, not the fleeting interests of any political party.”

Holder’s comments attempted to address accusations by Republicans that he had a history of taking actions that appeared to aid the Clinton White House over the strenuous objections of his own federal law enforcement agents and prosecutors.

As deputy attorney general under President Clinton, “My decisions were not always perfect,” Holder said. “But with the benefit of hindsight, I can see my errors clearly, and I can tell you how I have learned from them.”

Under sharp questioning, Holder admitted for the first time that he had favored prison commutations for 16 members of Puerto Rican nationalist groups in 1998 and 1999.

Those clemencies were controversial because the members of FALN (the Spanish acronym for Armed Forces of National Liberation) and the splinter group Los Macheteros had been convicted of serious conspiracy charges, and their groups were linked to more than 130 bombings in the U.S. that killed six people and injured hundreds.

Holder’s behind-the-scenes role in the case was largely unknown until last week, when it was reported that he repeatedly pressured his subordinates at the Justice Department to drop their opposition to the clemencies.

Numerous Republican senators said Thursday that they were shocked to read of Holder’s actions in the case, and demanded to know why he took them and if he would take them again.

Holder said his response now would be different.

“I think I would have said either this is something we shouldn’t do or . . . that the sentences should not be commuted to the extent that they were,” he said.

Holder, the first African American nominated to be the nation’s top law enforcement officer, said the Obama administration would move to shut down the detention center at Guantanamo Bay -- although it could take a significant amount of time to do so.

He said that some terrorists in the future could be prosecuted under some form of military tribunals if that process were revamped to provide better protections for the accused, and that others would be prosecuted in U.S. federal courts.

He said many detainees could be transferred to other countries, but the Obama administration was still struggling with what to do with the most dangerous terrorism suspects, who cannot be tried in civilian courts.

“We’re going to have to try to figure out what we do with them,” Holder said.

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