In his confirmation hearings, Attorney General nominee Eric Holder provided us hope with many of the opinions he expressed and positions he defended. He unequivocally named waterboarding as torture. He stood firm in the presence of Brownback's bizarre strategy to blaze inroads into Roe v Wade with a prenatal application of the Americans with Disabilities Act. And he steadfastly refused to accept the "24" straw man premise of Cornyn's lame attempt to legitimize torture with the "ticking time bomb" scenario he enjoys on the t.v. machine. Why then did Holder so willingly buy into the Bushite "war on terrorism" concept which Graham presented to him?
The present regrettable state of affairs regarding torture, rendition, tribunals and habeas corpus in which we find ourselves is due, in great part, to the implementation of a "war on" doctrine, rather than reliance on a system of criminal justice for which we have spent the entirety of our nation's existence refining and building on the collective wisdom of the founders, who set a course for jurisprudence which they knew would be constantly improved, but never completed. All that progress is thrown away when we propose to solve our difficulties, no matter how grave, not on the bases of justice, but on the premises of war.
GRAHAM:...as we move forward, one of the big issues facing this nation, and the legal community within our nation, is what to do with detainees that are captured in what is called the war on terror.
....And, Mr. Holder, is it fair to say that we're at war, in your opinion?
HOLDER: I don't think there's any question but that we are at war. And I think, to be honest, I think our nation didn't realize that we were at war when, in fact, we were.
When I look back at the '90s and the Tanzanian -- the embassy bombings, the bombing of the Cole, I think we as a nation should have realized that, at that point, we were at war. We should not have waited until September the 11th of 2001, to make that determination.
Up to the most recent historic point referenced by Holder, many terrorists responsible for these acts had been captured, tried and imprisoned by criminal justice systems. Five from the 1993 WTC bombing were convicted and are imprisoned, four responsible for the Riyadh bombing were convicted, then beheaded (by Saudi Arabia), thirteen suspects in the Khobar Towers bombing, though never extradited from Saudi Arabia, stand indicted by an American grand jury, and four participants in U.S. embassies bombings, including the one in Tanzania, were convicted and are imprisoned, with three more awaiting extradition. The record for military tribunals having prosecuted enemy combatants, the functional mode of justice in the "war on terror" for the past eight years, pales in comparison to that of real convictions brought by functioning criminal justice systems.
By the time of the last inauguration of a new American President, counter-terrorism coordinator Richard Clarke had devised a plan to eliminate or capture BinLaden and break the power of Al Qaeda, only to be ignored by an administration overrun by neoconservative doctrine.
The implementation of the "war on terror" has for years now spectacularly empowered the terrorists Clarke had carefully planned to disrupt. Yet Graham refuses to accept the reality that "criminalizing" terrorism had worked well for us before we abandoned it in favor of the much more lucrative "war on" approach, or that, as stated in a 2005 conference report of the Strategic Studies Institute of the U.S. Army War College:
European countries have a long history of individually and collectively responding to terrorism through their legal systems, and the United States could profit from examining those responses.
Even when Holder correctly identifies a crucial area of appropriate concern, the "hearts & minds of the people in the Islamic world", he defers to the "battlefield" mindset of Graham and apologetically confesses to the dark side of the questioner that his moment of truthful illumination is somehow "trite".
GRAHAM: ....where is the battlefield in this war? What makes up the battlefield?
HOLDER: ....The battlefield -- there are physical battlefields, certainly, in Afghanistan. But there are battlefields, potentially, you know, in our nation. There are cyber battlefields that we're going to have to -- where we're going to have to engage.
But there's also -- and this sounds a little trite, but I think it's real -- there's a battlefield, if you want to call it that, with regard to the hearts and minds of the people in the Islamic world.
So close, Mr. Holder, so close you were to the essence of what justice can do for this world that war never will. Must you apologize for regarding people's hearts and minds as worthy of winning, and leave your moment of enlightenment behind, ignored as an insignificant glitch in your testimony?
In Holder's admitted struggle with what to do about terrorism, he capitulates to Graham's request that "the war" [on terror] not be criminalized, and so fails to recognize the extensive terrorism fighting capabilities within the department which he will soon certainly lead. I hope the "only thing" Senator Graham asks isn't that the Department of Justice should just stay out of this.
GRAHAM:...Now, as we decide what form to try people and how to interrogate them, and how to detain them, the only thing I ask of this new administration is that we not criminalize the war. I'm not asking for the ability to be inhumane.
....Have you thought much about what to do with that group?
HOLDER: Struggled with that, and continue to struggle with that. These are extremely difficult questions, the ones that you have posed.
....We are going to have to come up with American solutions. These are truly not Republican and Democratic issues. I mean, we as a nation -- and this committee in particular -- I think has to come up with a way in which we resolve those issues.
And the one that you have raised is one that has given me a great deal -- I've given a great deal of thought to. How do we deal in an appropriate way with somebody who we know is a danger to this country, and yet be true to our values, and, in that battle for the hearts and minds that I discussed, make it appear that we're treating this person sworn to harm us, treat that person in a fair way, in a way that frankly they would not treat us?
Holder's question is profound far beyond what even he seems to recognize. I hope he is aware that his question contains the essence of it's own answer – that a terrorist would never treat us through a socially affirmed system of criminal justice, that terrorism is the abandonment of justice where accountability cannot stand in the way of amoral retribution, and that we enable the terrorists' rejection of accountability by engaging them in exactly the way they want - with a war.
Mr. Holder, when you approach the world as a battlefield, you must be prepared to attack, and to defend yourself from attack. Leave the battlefields for the military, and the attacks for warriors. If called upon by this nation, our military and it's soldiers will serve us well. That's their mission.
Your mission is not war, nor is it to look to sycophants of a failed administration for approval. Neither is it the mission of the Department of Justice to continue the failed "war on" policies of a discredited philosophy.
Mr. Holder, you are experienced and thoughtful, but you need to use those attributes to look at justice through justice's eyes.