Former Bush White House Officials Question Attorney General Holder’s Amicus Brief in Rumsfeld v Padilla

By Matt Loffman

Mar 10, 2010 1:44pm

In 2004 Attorney General Eric Holder was one of four former Clinton administration officials offering an amicus brief questioning President Bush's assertion that he had the inherent authority to indefinitely detain as "enemy combatants" American citizens captured in the US.

The brief, offered in the case Donald Rumsfeld v Jose Padilla, can be read HERE.  Holder’s co-authors include former Attorney General Janet Reno, former deputy Attorney General Philip Heymann, and the former counsel for the CIA Jeffrey Smith.

A Republican official on the Senate Judiciary Committee tells ABC News that Holder did not disclose this amicus brief before his confirmation hearings.

The brief was mentioned in a story published today in National Review written by former Bush White House officials Bill Burck and Dana Perino. The story is just the latest attack by members of the Bush administration against current officials of the Obama Justice Department, in which the values and judgments of current Justice Department officials are questioned and assailed as inadequate if not somehow collusion with terrorists

In recent days Republican senators and “Keep America Safe” — a conservative group headed by former Bush State Department official Liz Cheney and Weekly Standard editor Bill Kristol — have attacked the Obama Justice Department for refusing to disclose the names of Justice Department officials who had previously worked on cases asserting rights for detainees at Guantanamo Bay. Keep America Safe called seven of those officials “the Al Qaeda Seven.”

White House press secretary Robert Gibbs called the criticism “bizarre,” given that former members of the Bush Justice Department have defended detainees as well. 

On Monday a group of conservative attorneys recently wrote a letter calling the attacks “shameful” and asserting that the notion “that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit.”

While keeping away from the sort of language and insinuations made by Cheney and Kristol – and defended by former Bush White House speechwriter Marc Thiessen – Burck and Perno seized upon one section of Holder’s brief for particular criticism: an acknowledgment by Holder et al that the limits on Executive Power they sought the Supreme Court to establish carried with them a risk.

Holder et all wrote that the “limitations” on Executive power “might impede the investigation of a terrorist offense in some circumstances. It is conceivable that, in some hypothetical situation, despite the array of powers described above, the government might be unable to detain a dangerous terrorist or to interrogate him or her effectively. But this is an inherent consequence of the limitation of Executive power. No doubt many other steps could be taken that would increase our security, and could enable us to prevent terrorist attacks that might otherwise occur. 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.” (Emphasis mine.)

Burck, former deputy White House counsel for President George W. Bush, and former Bush press secretary Dana Perino, note that President Obama and Attorney General Holder constantly assert that “(g)iving more constitutional rights to suspected terrorists will not impede our efforts to protect national security.”

But this amicus brief, they say, suggests that “the attorney general had a different view not so long ago when he was a lawyer in private practice. Back then he understood that Mirandizing terrorists, to choose one example, is not without risk to our national security.” They title their story “‘Acceptable’ Risk: Holder’s undisclosed Padilla connection.”

As of Wednesday afternoon, the Obama White House has had no comment.

A Justice Department official notes that the brief also states “that given the expansive authorities that otherwise exist, the risk to the Nation from denying the Executive the authority it seeks in this case is minimal.  If additional Executive authority to detain citizens found within the United States is deemed necessary to protect against terrorism, that authority should come through congressional action, where the boundaries can be defined, the terms of any such detention can be set, and the procedure can be subject to judicial oversight."

As you may recall, Padilla was arrested on May 8, 2002, by the FBI after returning to Chicago from Pakistan, where he allegedly conspired to carry out terrorist attacks in the US.

An American citizen, Padilla was held as a “material witness” in the grand jury investigation into the 9/11 attacks. In June 2002, however, President Bush named Padilla an “enemy combatant” and ordered Defense Secretary Donald Rumsfeld to assume custody. Padilla was transferred to the Consolidated Navy Brig in Charleston, South Carolina.

An attorney filed a habeas petition on Padilla’s behalf with the United States District Court for the Southern District of New York. The court denied a habeas corpus petition on his behalf, ruling that President Bush had the inherent authority, as Commander-in-Chief, to designate Padilla as an enemy combatant and detain him as long as the conflict with al-Qaida persists.

The United States Court of Appeals for the Second Circuit disagreed, saying the president did not have the authority to order military detentions of US citizens captured on US soil.

The Supreme Court punted, ruling that because Padilla at this point was in a military prison the habeas petition should have been filed in the US District Court for the District of South Carolina and should not have named Secretary of Defense Donald Rumsfeld, but rather the commander of the base, Cmdr. Melanie Marr.

In September 2005, the US Court of Appeals for the Fourth Circuit – the correct jurisdiction, per the Supreme Court — ruled that President Bush had the authority to detain Padilla without charges:

“The Congress of the United States, in the Authorization for Use of Military Force Joint Resolution, provided the President all powers necessary and appropriate to protect American citizens from terrorist
acts by those who attacked the United States on September 11, 2001. As would be expected, and as the Supreme Court has held, those powers include the power to detain identified and committed enemies such as Padilla, who associated with al Qaeda and the Taliban regime, who took up arms against this Nation in its war against these enemies, and who entered the United States for the avowed purpose of further prosecuting that war by attacking American citizens and targets on our own soil — a power without which, Congress understood, the President could well be unable to protect American citizens from the very kind of savage attack that occurred four years ago almost to the day.”

A few months later, in January 2006, Padilla was transferred to a criminal prison, indicted, and on August 16, 2007, a federal jury found him guilty of "conspiracy to murder, kidnap and maim persons in a foreign country … for the purpose of opposing existing governments and civilian factions and establishing Islamic states under Sharia (Islamic law), and material support for terrorism.”

He was sentenced to 17 years and four months in prison.


UPDATE: DOJ spokesman Matt Miller responds: ‪"The brief should have been disclosed as part of the confirmation process. In preparing thousands of pages for submission, it was unfortunately and inadvertently missed. In any event, the Attorney General has publicly discussed his positions on detention policy on many occasions, including at his confirmation hearing.

"As the brief noted and as the Attorney General has said many times publicly, the government has ample lawful ability to detain and interrogate terrorists and disrupt attacks without resorting to making claims of executive power that strain the Constitution. This nation has always been at its strongest when it has properly balanced executive authority with appropriate Congressional and judicial oversight."

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