Eric Holder on the hot seat

The Boston Globe Opinion page today, Sunday, June 24, 2012, has an excellent essay by Carol Rose and Matthew Segal both of the ACLU of Massachusetts. (you may need log-in to access; try googling for it on the Internet if this link does not work for you)

U.S. Attorney General Eric Holder is coming to Boston next Tuesday to give a speech at a civil rights symposium. The writers note that he has been recommended to be cited for contempt of Congress, and they call upon him to “do the right thing,” and then explain what they mean by that. They also precede that by praising him for the good things he is doing right already, in their opinion.

Here are their points with links to legal documents which support or illumine the matters:
I. Hooray for Holder:

A. Generally transformed the widely discredited Justice Department into an agency that has been doing good work upholding the rights of ordinary people, viz:

B. Refused to defend the federal Defense of Marriage Act (DOMA)

DOMA text. PL 104-199, 110 Stat. 2419 and 2420, 1 USC Chapter 1 and 28 U.S.C. Chapter 115

1. Massachusetts v. Department of Health and Human Services
for all filings and decision in full text

2. Wikipedia has a nice, clear discussion about the case, but be sure to check the edits history to be sure you are looking at a version that has not been vandalized. In this court case (companion case to Gill v. Office of Personnel Management (OPM), filed by GLAD in the same Federal District Court for Eastern Massachusetts, plaintiff same-sex couples argue that the federal DOMA law prevents them from being treated on an equal basis as other couples legally married in Massachusetts. For instance, under this law, same sex couples may not use the jointly married tax status, which can save couples a good amount of money on income taxes. The surviving spouse may not claim Social Security benefits. And federal employees may not share any of their employment benefits with same sex spouses, such as health insurance coverage. It meant a good deal that the Justice Department, under Attorney General Holder, refused to defend DOMA in these cases.

C. Challenged the Arizona immigrant profiling law: Arizona v. United States for full text of documents, some links to press coverage and transcript and audio of oral arguments; opinions as they become available.

D. In other civil rights areas, Holder deserves credit:

1. Voting rights – In March, 2012, for instance, Holder used his powers under the Voting Rights Act of 1965 to block enforcement of a new law in Texas that would require voters to show identification at the polls. Critics considered it would disproportionately deny Hispanics and other marginalized populations the right to vote. According to the article in Ms. Magazine, “[L]ast year, 34 state legislatures, mostly GOP-led, introduced strict ID laws, and seven states–Alabama, Kansas, Rhode Island, South Carolina, Tennessee, Texas and Wisconsin–enacted them.” Here is a link listing all the consent decrees and settlements the Justice Department details under its work under Voting Rights at its website. There are no cases listed since 2009.

2. Police practices

a. Maricopa Sheriff’s office where discriminatory practices against Latino citizens and prisoners were a problem, and then retaliatory actions against critics became a problem. May, 2012.

b. New Orleans, LA, prison system, prisoner safety, health, well-being, including rape, prisoner-on-prisoner violence and officer misconduct. 2011 – 2012.

c. Berkeley county Sheriff’s Office and Berkeley County Detention Center Charleston, S.C., consent decree to provide access to prisoners to receive Prison Legal News and religious publications. April, 2012.

d. Sharpe v. Baltimore City Police Department, statements and correspondence regarding case over whether individuals have a First Amendment right to record police in the completion of their duties. (Jan. and May 2012)

3. Racial justice

a. (see Maricopa Sheriff case above – racial profiling)

b. Justice warns Los Angeles Police Department on racial profiling, November, 2010

c. Agreement with University of San Diego to protect African American students from harassment on campus (together with Dept. of Education) April, 2012.

4. Fair sentencing – under the new Fair Sentencing Act, P.L. 111-220, 124 Stat. 2372, Justice Department lawyers ultimately argued to the Supreme Court for a less strict reading of the timing of the new law, allowing judges sentencing crack cocaine defendants to use the new guidelines earlier. This also should be credited under “racial justice.”

II. BUT the authors of this essay criticize Attorney General Holder, and the Justice Department. He made a vow during his confirmation hearing . Critics thought that since he was already a Justice Department official, he would be too ready to cater to the Obama administration’s desires. In his confirmation hearings, Holder, promised to “do the right thing,” rather than the easy thing, by giving in to the administration. He promised to he would make decisions as Attorney General regardless of “…the impact that it’s going to have on the administration that you serve…” because the attorney general must keep some distance from the other executive branch officials, “even from the president that the attorney general serves.”

The authors give Holder credit for trying to keep that promise in the early days as Attorney General. But say that he quickly changes his methods. Here is a list of FAILS:

FAIL 1: Close Guantanamo – Both Holder and Obama backed off in the face of Congressional opposition.

FAIL 2: Release top-level Bush-era torture documents – abandoned promise after Congressional opposition.

FAIL 3: Try torture suspects in civilian courts instead of military tribunals – Holder abandoned this, as well.

The authors now note that Holder has moved so far into the Obama administration’s pocket that he is now arguing to expand presidential powers:

Pocket 1: Suggest that a presidential signing statement excused President Obama signing the National Defense Authorization Act of 2012, P.L. 112-81

Signing statement text.

Litigation to block the bill: Hedges et al., v. Obama et al., (S.D. NY)

8 page memorandum decision from Judge Forrest.

a few articles: N.Y. Times, L.A. Times.


Pocket 2: Endorse presidential prerogative to target and assassinate civilians

Pocket 3: Justice Department under Holder has overseen an expansion of domestic surveillance

Pocket 4: Increasing militarization of law enforcement

Pocket 5: Justice has aggressively pursued government whistleblowers, “Particularly those who expose illegal or wasteful homeland security schemes.” (quoting Boston Globe essay).

. Pocket 6: Justice Department has expanded state secrets doctrine to prevent courts from reviewing warrantless wiretapping or official acts of torture. and a more recent article here.


And now, the “Fast and Furious” scandal for which Holder has been recommended to be held in contempt of Congress.

A. “Fast and Furious” was a sting operation run out of Phoenix, Arizona between 2009 and 2011, with the approval of the U.S. Attorney in Phoenix. Alcohol, Tobacco and Firearms agents purposely did not intercept more than 2,000 weapons they knew were being purchased at gunshops by illegal buyers. They intended to trace the weapons, but lost track of them. Many have since surfaced at crime scenes in Mexico and the United States. But the crime scene that turned the problem in to a firestorm was the murder of border patrol agent Brian Terry

B. The contempt citation is over an unwillingness to turn over material to Congress. There are allegations that some members of Congress are making personal attacks against Holder and using the issue as an election year bludgeon against the President. The vote marks only the third time in 30 years that an Attorney General has been held in contempt of Congress.

3. Joint House Report on Fast and Furious