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Holder Attorney General Non-Prosecution Assurance Controversy Part 2

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Following up on my article of last Thursday, http://www.opednews.com/articles/Holder-Confirmation-Contro-by-Steven-Leser-090129-44.html the Washington Times' report that Attorney General Nominee Eric Holder made some sort of non-prosecution assurance to Republican Senator Kit Bond has thus far not been corroborated by any other news agency. It seems likely that there was either a miscommunication or the Times exaggerated or misstated what Senator Bond told them. An anonymous aide for Mr. Holder has been calling various agencies including the Huffington Post http://www.huffingtonpost.com/2009/01/28/aide-holder-has-made-no-d_n_161971.html to deny the allegations.
The aide reiterated that:
"Eric Holder has not made any commitments about who would or would not be prosecuted," said the aide. "He explained his position to Senator Bond as he did in the public hearing and in responses to written questions."
Let’s talk about what the Attorney General nominee said to the senate judiciary committee when he explained his position because a lot of speculation surrounds exactly what this means:

Prosecutorial and investigative judgments must depend on the facts, and no one is above the law. But where it is clear that a government agent has acted in 'reasonable and good-faith reliance on Justice Department legal opinions' authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution.


The key phrase here is ‘good-faith’.  It is NOT good faith, for instance, if someone knew that there was a good chance that what they were doing was wrong and went to the justice department seeking a written finding that would prevent prosecution where one had, as Holder put it ‘reasonable’ doubts as to the legality of their actions. Everyone in government knows that torture is wrong and illegal. Everyone in government knows that waterboarding is torture (even George W. Bush and Dick Cheney have admitted that they know this). Running to the justice department to find a stooge willing to draft an opinion that waterboarding isn’t torture or that torture is legal does not satisfy the test of which Holder spoke during the hearings.

What Holder was saying was if someone could reasonably believe that what they were doing was right and they received an affirmative opinion by the justice department as backup, they ought not to be prosecuted. When talking about ‘reasonably’ though, we have to remember that people in the government responsible for departments have a high expectation to know what is right and wrong in their areas of expertise. This goes all the way up and down the chain. FBI/CIA/NSA and military intelligence interrogators know the Geneva conventions’ rules regarding torture and treatment of prisoners and so does just about everyone else in the justice department and executive branch of the government. The President and Vice President and members of their cabinet have legions of lawyers and experts to advise them and we can expect that they should have known better than to authorize torture. If Republicans are looking to Holder’s statement as some sort of assurance that the members of the Bush administration who committed crimes are free and clear, they are mistaken.
What we do know is that several Republican senators tried to get Holder to make as broad an assurance as possible that he would not prosecute certain offenses and that Senator Bond was probably one of those Senators. If Bond made such a request of Holder, he would be only one of at least three Republican Senators who have attempted to or come close to attempting to gain such assurances from the Attorney General nominee.
Senator Sheldon Whitehouse (D-RI) condemned these attempts and said the attempts were "coming perilously close to an impropriety during the course of these nomination hearings. We came perilously close to seeking a prosecutive commitment from an attorney general candidate on a matter he would then have to review and undertake as attorney general. This is wrong on many levels."
See Senator Whitehouse make these statements on this video -

If the embed doesn’t work, click http://www.youtube.com/watch?v=bA1sdTZlkb4
This dogged pursuit of a prosecutive commitment (with due respect to Senator Whitehouse's generous statement, we all know that the involved Republican Senators WERE seeking such a commitment) from a significant number of Republican Senators is interesting. They know what is coming if the proper investigations are started. You can smell the fear coming from Republican elected officials and members of the former Bush administration.
The crimes committed by the Bush administration and those who supported it are too numerous to detail. To see examples with explanations click http://kucinich.us/impeachment/articles.pdf but even this is too abbreviated a list. If he does his job right, Mr. Holder will be the busiest Attorney General in the history of this country. I hope he starts his investigations with an investigation of whether those who attempted to tie his hands during the confirmation process committed crimes in their attempts.

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A political blogger for the International Business Times, Steve Leser is a hot national political pundit. He has appeared on MSNBC's Coundown with Keith Olbermann, Comedy Central's Daily Show with Jon Stewart and Russia Today's (RT) Crosstalk with (more...)
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