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Attorney General Nominee Eric Holder Declares “Waterboarding Is Torture”

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President-elect Barack Obama’s nominee to be Attorney General, Eric Holder, has declared waterboarding to be a form of torture and has vowed to shut down Guantanamo Bay. At his confirmation hearing before the Senate Judiciary Committee, Holder was questioned about torture, the pardoning of fugitive billionaire Marc Rich and the commutation of sentences of sixteen members of the Puerto Rican independence group the Armed Forces of National Liberation, known as FALN. We play highlights. Plus author Louise Erdrich on the man to whom Clinton/Holder did not grant clemency: Leonard Peltier.[includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

JUAN GONZALEZ: President-elect Barack Obama’s nominee to be attorney general, Eric Holder, has declared waterboarding to be a form of torture and has vowed to shut down Guantanamo Bay. At his confirmation hearing before the Senate Judiciary Committee, Holder also pledged to restore credibility to the Justice Department and to serve as the people’s lawyer. If confirmed, Holder will become the nation’s first African American attorney general.

Here are excerpts of the hearing, including questions from Senate Judiciary Chair Patrick Leahy; Wisconsin’s two Democratic senators, Herb Kohl and Russ Feingold. This is Eric Holder.

    ERIC HOLDER: Let me try to state this as simply as I can. It simply should not be the policy or the practice of the United States of America to turn over a prisoner, a captured person, to a nation where we suspect or have reason to believe that that person will be tortured.

    SEN. PATRICK LEAHY: Do you agree with me that waterboarding is torture and illegal?

    ERIC HOLDER: If you look at the history of the use of that technique, used by the Khmer Rouge, used in the Inquisition, used by the Japanese and prosecuted by us as war crimes — we prosecuted our own soldiers for using it in Vietnam — I agree with you, Mr. Chairman, waterboarding is torture.

    SEN. PATRICK LEAHY: Do you believe that the President of the United States has authority to exercise a commander-in-chief override and immunize acts of torture?

    ERIC HOLDER: Mr. Chairman, no one is above the law.

    SEN. HERB KOHL: Mr. Holder, for decades, this country has been looked up to around the world for its unwavering commitment to human rights and the rule of law. There is a growing consensus that the detention center at Guantanamo Bay has tarnished that image. While the past two attorneys general, the current secretaries of Defense and State, and the President himself have publicly said that they would like to close Guantanamo, no steps, as yet, have been taken.

    ERIC HOLDER: To responsibly close the facility, I think that we have to understand who these people are, make an independent judgment of who they are based on an examination of the records that exist down there, so that we can treat them in an inappropriate way. I think substantial numbers of those people can be sent to other countries safely. Other people can be tried in a jurisdiction and put in jail. And there are possibly going to be other people who we’re not going to be able to try for a variety of reasons, but who nevertheless are dangerous to this country, and we’re going to have to try to figure out what we do with them. But I think that review that we’ll have to go through to figure out who these people are and in what categories they fit will take an extended period of time, and I think that is the thing that will prevent us from closing Guantanamo as quickly as I think we would like, but I want to assure the American people that Guantanamo will be closed.

    SEN. RUSS FEINGOLD: Is there anything in the FISA statute that makes you believe that the President has the ability under some other inherent power to disregard the FISA statute?

    ERIC HOLDER: No, I do not see that in the FISA statute.

    SEN. RUSS FEINGOLD: Well, thank you. I think that’s a very important break in favor of the rule of law that we’ve been waiting for in this country for many years, and I appreciate that answer.

AMY GOODMAN: That was Senator Russ Feingold questioning Eric Holder, President-elect Barack Obama’s nominee to be attorney general. We will come back to excerpts of the hearings in a minute.


JUAN GONZALEZ: Republicans repeatedly questioned Eric Holder’s record as deputy attorney general in the Clinton administration and his role in the 2001 pardoning of fugitive billionaire Marc Rich. Holder was asked about the pardon by Senate Judiciary Chair Patrick Leahy, followed by Republican Senator Arlen Specter.

    SEN. PATRICK LEAHY: Some senators, following — including commentators like Karl Rove, have spoken extensively about your role in the pardon of fugitive Marc Rich at the end of President Clinton’s second term. How do you respond to those who say the Marc Rich pardon shows you do not have the character to be an independent attorney general? What did you learn from that experience?

    ERIC HOLDER: Well, as I indicated in my opening statement, I made mistakes. That was and remains the most intense, most searing experience I’ve ever had as a lawyer. There were questions raised about me that I was not used to hearing. I’ve learned from that experience. I think that, as perverse as this might sound, I will be a better attorney general, should I be confirmed, having had the Marc Rich experience.

    SEN. ARLEN SPECTER: Given the background of this man, it’s hard to brush it off, it seems to me, as a mistake. The guy had a reprehensible record. The guy was a fugitive. The indicators are — a House finding — that you were very heavily involved, and yet, you testified you were only casually involved. Question of candor on that comment. And then you had a president who obviously wanted to grant a pardon.

    ERIC HOLDER: Well, I don’t mean to minimize what I did by calling it a mistake or mistakes. In fact, I take what I did seriously, and I’ve expressed regret for what I did consistently.

JUAN GONZALEZ: That was Eric Holder’s responses to Pennsylvania’s Republican Senator Arlen Specter.

Republican Jeff Sessions of Alabama criticized Eric Holder for his recommendation to President Clinton in 1999 to commute the sentences of sixteen members of the Puerto Rican independence group the Armed Forces of National Liberation, known as the FALN.

    SEN. JEFF SESSIONS: You did indicate you thought the President’s decision on the FALN was reasonable. And I was United States attorney for twelve years, assistant United States attorney for two-and-a-half, attorney general for two. In my opinion, it’s not reasonable. It is not close. I mean, that’s all I can tell you. And I don’t believe it was a close question, and it worries me that you say that was a reasonable decision.

    ERIC HOLDER: I looked at the situation, took into account the fact that these people were not directly involved in incidents that led to death or injuries.

    SEN. JEFF SESSIONS: Osama bin Laden and Khalid Sheikh Mohammed weren’t directly involved in the murders; there were conspirators to that. And they probably and morally are more accountable, in my view, and equally accountable as those who actually carried out the attacks in the United States, wouldn’t you agree?

    ERIC HOLDER: I would. But the FALN people are not in the same category as Khalid Sheikh Mohammed or bin Laden, in that they were not the heads of the organization. That is not my understanding of the people who were with the —- the pardons were granted. Again, I want to emphasize, these people were criminals. They were terrorists. I was not giving them a pass; they served substantial amounts of time. And I don’t want anybody -—

    SEN. JEFF SESSIONS: You recommended against the law enforcement people that they not serve the full time they were sentenced, and they wouldn’t even file papers — I don’t think any of them actually even asked for a pardon.

AMY GOODMAN: That was Alabama’s Jeff Sessions questioning Eric Holder. Juan, the story of the Independentistas?

JUAN GONZALEZ: Well, yes, the members of the FALN were arrested in the early 1980s, accused of conspiracy to set a series of bombs throughout the United States, and all of the members served quite a bit of time, about twenty years, almost twenty years, most of them. And, of course, the Clinton administration’s decision to commute their sentences was not very different from the Carter administration’s decision more than twenty years earlier to free the Puerto Rican nationalists in 1979. And it is — the fact is that all of the people who were released have continued to have productive lives, have not been involved in any kind of other illegal activity. And I think the mere fact that over the years since then they’ve all become upstanding citizens is proof that the decision of the Clinton administration at the time to commute the sentences was a correct one.

AMY GOODMAN: Well, while much of Eric Holder’s hearing focused on President Clinton’s decisions to pardon Marc Rich and to commute the sentence of the Puerto Rican independence activists, he was never asked about Clinton’s decision not to pardon Native American activist Leonard Peltier. Peltier was convicted three decades ago in a controversial trial of the killing of two FBI agents on the Pine Ridge reservation in South Dakota. He has long maintained his innocence.

On Wednesday night, I spoke with the Native American novelist and poet Louise Erdrich about Leonard Peltier.

    LOUISE ERDRICH: I sat through that trial as a young person, and I listened to all the evidence, and I heard it all, and there was no way I could see that this person would be convicted. There simply wasn’t evidence. And he was convicted. He received two life sentences, consecutive life sentences, and is incarcerated to this day, although human rights organizations all over the world have called for his release.

    AMY GOODMAN: Do you think your writing could literally liberate someone?

    LOUISE ERDRICH: No. I tried to write — there was a — I had an op-ed published, hoping that President Clinton would pardon Leonard Peltier. That did not happen. We all know who got pardoned instead.

    AMY GOODMAN: You might remember, that was Marc Rich.

    LOUISE ERDRICH: Yeah. I have hopes, but I —

    AMY GOODMAN: In fact, Clinton went around at that time, went on a tour to Native American reservations, and many people appealed for him to grant clemency for Leonard Peltier.

    LOUISE ERDRICH: Leonard is an incredible symbol to people, and he’s a symbol of the sacred trust between these two countries, our domestic dependent countries and the United States of America. We’re different countries, although we’re one.

AMY GOODMAN: That is Louise Erdrich in New York talking about her new book The Red Convertible. One of her stories is loosely based or refers to the case of Leonard Peltier. This is Democracy Now!,, the War and Peace Report. This week, Leonard Peltier was moved to a federal prison in Waymart, Pennsylvania.

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