In his remarks on torture, Guantánamo Bay, and the limits of executive power at the first round of his confirmation hearings today, attorney general nominee Eric Holder made it evident that his Justice Department would make a clear break from its policies under the Bush administration.
In direct contrast to his two predecessors at their confirmation hearings, Holder explicitly voiced his opposition to torture, which he said included waterboarding, and reiterated his and President-elect Barack Obama's commitment to closing the detention facility at Guantánamo Bay. He also underscored several times that the president could never act above the law.
The very first question lobbed at Holder by Democratic Sen. Patrick Leahy, the chairman of the Senate Judiciary Committee, was whether Holder, like Leahy himself, saw waterboarding as torture and therefore illegal.
Holder hardly hesitated. "I do agree with you, Chairman," he said. "Waterboarding is torture."
At their hearings, both Attorney General Michael Mukasey and Alberto Gonzales had repeatedly dodged questions on waterboarding, an interrogation tactic that mimics the sensations of drowning.
As well as calling such harsh interrogation techniques illegal and saying that they "worried" and "disturbed" both himself and Obama, Holder questioned the techniques' efficacy. He said that they have the potential to be used as a recruiting tool for enemies of the United States and mentioned that it wasn't clear that they produced useful intelligence.
He was equally direct when speaking about Guantánamo Bay. "Guantánamo will be closed," he said.
Deciding what to do with former detainees would prove a much bigger challenge than simply shutting down the physical facility itself, he said. And because the incoming administration was still determining how to do that, he could not say what would be in its place.
But, he said, "the one thing I can assure you, and the American people, and frankly the world, is that whatever system we use, it will be consistent with our values. It will be a system that has due process guarantees. It will be seen as fair."
Holder also emphasized that not even the president had the authority to allow harsh techniques such as waterboarding.
"No one is above the law," he said. "The president has a constitutional obligation to faithfully execute the laws of the United States."
He emphasized that notion several more times throughout the hearing, particularly when questioned on his ability to maintain independence from the president—a major potential soft spot in his confirmation.
In particular, Holder has been criticized for his role in Bill Clinton's pardoning of fugitive financier Marc Rich, as well as for his commutation of the sentences of 16 members of militant Puerto Rican groups. Although all of Obama's other nominees are expected to sail smoothly through their confirmation hearings, these incidents made Holder's hearing a little rocky. He is, however, expected to be confirmed.
Republican questioners seemed to agree on the breadth of Holder's experience, with Alabama Sen. Jeff Sessions saying he believed that Holder brought "far more experience" to the office than Gonzales had. They therefore zeroed in on whether Holder would be able to function independently.
Sessions called the granting of clemency to the members of the nationalist group F.A.L.N. "inexplicable" and asked Holder if he thought the decision was "right." Holder replied that he thought Clinton's decision had been "reasonable," given the situation.
"These were criminals," Holder said. "These were terrorists. These were bad people. But the president's determination was that they had not committed any acts themselves that led to death."
But Holder also frequently mentioned that he regretted his actions in the Rich pardon, saying several times that he had "made mistakes." In particular, he said, "I should have made sure everybody who was a prosecutor in that case was informed, an assumption that turned out not to be true."
And the lessons he learned from that experience, he said, would make him an even better attorney general.
"There has to be a distance between me and the president," far more so than is true for those in other cabinet positions, Holder said. "I will be an independent attorney general and the people's lawyer."
The hearings continue tomorrow. If confirmed, Holder will be the first African-American to ever serve as attorney general.