This article originally appeared in GQ and is reprinted on Longform by permission of the author.
A FEW DAYS AFTER Rahm Emanuel resigned as White House chief of staff in October, I stopped by the Justice Department to see Eric Holder. I had been meeting with the attorney general periodically for about a year (since he was named one of GQ's Men of the Year last December), and I knew from our conversations, as well as from Holder's friends and family, that the last few months had been a bumpy ride. But I also knew that many of Holder's frustrations on the job could be linked to his thorny relationship with Emanuel. I wondered if things were looking up.
On the fifth floor of the Justice building, I took a seat at the long table outside Holder's office and was studying a portrait of Bobby Kennedy on the wall when Holder bounded into the room with a grin, slapped my hand into a shake, and said, "How you doing, man? Are you avoiding me?"
Up close, the attorney general is very different from the brisk and prosecutorial figure one finds on daytime C-SPAN. There is something almost whimsical about him, some half-hidden smile that always seems to linger near the corner of his mustache, as though he is watching the world from one step away.
Since his appointment in February 2009, Holder has become a vanguard for the administration's progressive wing. He has promised to end the policy of indefinite detention at Guantánamo by prosecuting some of its most notorious detainees; to investigate torture by the CIA; and to revitalize the department's most neglected offices, like the long-suffering Civil Rights Division. He has even tried to extend his influence beyond the DOJ, declaring his opposition to the death penalty and gun rights despite a constitutional obligation to enforce both.
Naturally, all of this has made Holder a favorite target of the right, and in the buildup to this month's election, the attorney general became a wedge issue unto himself, with his name plastered on Tea Party posters, newspaper ads, and television commercials. Yet Republicans may be the least of Holder's problems. Even as he has rankled the right, he has also alienated many of his allies in the administration—and none more visibly than Emanuel, whose relentless deal-making has clashed with Holder's principles time and again.
Of course, the job of any attorney general straddles a unique and tipsy political fulcrum: On the one hand, he is a member of the president's team, expected to share his political goals. On the other, he is the nation's top cop, required by oath to leave politics at the door. The balance between these can be difficult to strike, and the surest sign of an independent AG is often the irritated White House six blocks away. Still, Holder is a special case. Inside Obama's West Wing, Emanuel's hostility toward Holder has become so pitched at times that the president has had to intervene. "Occasionally, Rahm would cross the line about Eric," says a source with access to White House deliberations, "and the president would tell him, 'Rahm, knock it off.' " Inside Holder's circle of advisers, the frustration with Emanuel has been equally palpable. When I asked the attorney general's closest friend, Steve Sims, a man Holder describes as his "consigliere," about the political pressure emanating from Emanuel's office, Sims, who had been relaxing on the sofa of his Chevy Chase home, jumped from his seat and shouted, "They need to shut the fuck up and let him do his job! He is not a political animal!" And when I asked Holder's brother, Billy, about Emanuel, he sighed deeply and shook his head. "Man, that guy…" he sputtered. "That guy's an animal. He's a beast."
Now that Emanuel has stepped down, the mood among Holder loyalists is triumphal. Former White House counsel Greg Craig, an ally of Holder's on several key issues, was recently heard on an open microphone predicting, "If Rahm goes, Eric survived," and in my own conversations with congressional, White House, and DOJ sources, I heard the same prognosis at least a dozen times. Yet after following Holder's trajectory for the past year, the forecast seems far from certain. If anything, Emanuel's departure brings into focus the more elusive question that has surrounded the Obama White House since day one: how much Emanuel actually drove administration policy, and how much he only reflected it. I had come to Holder's office to find out: Did Rahm's departure signal a new opening, or was the problem never with Rahm at all?
FROM THE OUTSET, Obama's choice of Holder was designed to highlight his commitment to an independent Justice Department. Unlike former attorney general Alberto Gonzales, Holder wasn't an old friend of the president, hadn't ever worked for him before, and didn't hail from the same political hometown. And unlike attorney general John Ashcroft, whose career lay in tatters before his appointment, Holder's qualifications were beyond reproach: At 57, he had worked for the DOJ most of his adult life, including a dozen years in the Public Integrity section, half a dozen as a U.S. attorney, and four as Janet Reno's second in command.
Yet if Holder was relatively new to Obama, he shared with the new president a worldview rooted in a common experience. Both were men of color and children of immigrants, and both had thrived in the mostly white upper reaches of public life, even while struggling to maintain their connection to, and identity within, the African-American community.
Raised in the neighborhood of East Elmhurst, Queens, Holder grew up in a thriving nexus of African-American culture. As a kid in the 1950s and '60s, his neighbors included Louis Armstrong, Dizzy Gillespie, Willie Mays, and Malcolm X. "Louis Farrakhan lived midway up the block," Holder's brother, Billy, recalled recently. "And when Muhammad Ali was Cassius Clay, he brought Malcolm's daughters to the store up the street to buy candy. He signed a brown paper bag for me—if only I could find that now!"
As Billy spoke, we were standing outside the old house, watching traffic cruise down Twenty-fourth Avenue. Periodically a car would slow and a neighbor would shout to Billy, who would either burst out laughing or trot into the street for a high five. With just twenty-two months between the Holders, Eric and Billy remain uncommonly close. When the attorney general is summoned before Congress, he frequently asks his brother to join him, and on some issues, he trusts no one more. But temperamentally the two could not be farther apart. Eric is cerebral, reserved, meticulously spoken. Billy is all heart; having stayed close to home for most of his life, he retains a strong Queens accent and disposition. I had met up with him at a nearby McDonald's, where he was hectoring the staff to be vigilant about trash, and as we stood outside his childhood home, he was wearing his regular work clothes: faded blue Dockers that he hems himself and a white button-down shirt with the Golden Arches on the chest.
From a young age, Billy said, Eric was pushed toward a different path. Beginning in the fifth grade, he was removed from the local school and sent to a gifted program in Manhattan, making the hour-long commute each day at age 10. "He was in an all-black world here," Billy said, "and he was plucked out and taken to an all-white world. And you've gotta remember, we're talking about the 1950s, not a superliberal time. But he never spoke about it. He had to go through it alone."
It wasn't until Holder arrived at Columbia University in the fall of 1969 that he connected with four other African-American students who could relate to his somewhat prismatic experience. On weeknights, they studied until the small hours; on weekends, they delved into the Harlem scene and immersed themselves in the activism of the times—marching in the streets for housing and education, coaching a youth football team, mentoring kids in the Manhattan Valley projects. "We took over the ROTC lounge in Hartley Hall and created the Malcolm X Lounge," says Steve Sims, laughing.
Today the imprint of those years is unmistakable in Holder's thinking. After thirty-five years in the nation's capital, in some of the loftiest corners and corner offices of the federal government, he retains a surprisingly shoe-leather approach to public service. In January, I found him celebrating his one-year anniversary as attorney general, over the long weekend of Martin Luther King's birthday, not on a decompression jaunt to his parents' homeland of Barbados but in the musty basement of a downtown church, spooning gobs of warmed-over egg onto plates for the city's homeless. "I'm Eric," he said to the bedraggled guests, wandering among tables with refills of juice. And last fall, I opened up the morning paper to discover that Holder had dashed out of town on short notice—to confront an episode of school violence. A kid in Chicago named Derrion Albert had been assaulted by classmates on his way home from school, punched and pummeled until he collapsed on the sidewalk and died, and Holder, who saw footage of the incident on TV, canceled his schedule on a Tuesday at 3 p.m., hurried home to pack a bag, and by 7:30 the following morning was entrenched in meetings with the mayor and community leaders. But when I called the White House senior adviser, Valerie Jarrett, to learn more about Holder's trip, she seemed almost as surprised as I was. "I asked him what was on his schedule, and he had some really, really important things," Jarrett said. "But he just felt it was important for him to be there as an African-American man."
For Holder, the position of attorney general had always loomed in the distance like a grail—the pinnacle of influence for a public-service lawyer. Yet the decision to accept Obama's offer was not as easy as it may seem. After three decades of grueling hours on a government paycheck, he was finally enjoying the private sector—spending evenings and weekends at home and taking his family on proper vacations. "He was finally earning money!" says Billy. Nor was Holder's wife, Sharon, eager to give up her husband to another all-consuming, eighty-hours-per-week job that paid a tenth of his current salary.
Ultimately, what convinced Holder to accept the position had as much to do with George W. Bush as Barack Obama. In the span of eight years, the Bush administration had transformed the DOJ in ways that offended Holder deeply. Nowhere was the change more visible than inside the Civil Rights Division, which Holder calls the department's "crown jewel." Since its creation in the 1950s, the CRD had always been on the forefront of America's quest for equal rights, a place where the nation's standards of fairness were etched into case law, one difficult decision at a time. Yet under the Bush team, the CRD had become a bastion of discrimination itself.
Atop half the CRD's offices sat a man named Bradley Schlozman—32 years old, four years out of clerkship, with a right-wing fervor matched only by his disdain for the office he was assigned to help lead. Within days of arriving at the CRD, Schlozman set out to purge liberals from its staff—isolating some of the most experienced lawyers, assigning their cases to younger and more conservative attorneys, and when the older lawyers complained or quit, replacing them with even more young conservatives. Throughout, he was explicit about his plans, writing to friends that the CRD was a cesspool of "commies," "pinkos," and "mold spores" and explaining that his real intention "is to gerrymander all these crazy libs right out of the section." And so he did. Between 2003 and 2007, nearly three-quarters of the CRD's lawyers quit, and according to an internal review completed in 2008, of the ninety-nine lawyers Schlozman hired to replace them, roughly two-thirds were outspoken conservative activists, and the other third were either apolitical or vague in their beliefs. Only two of the ninety-nine confessed to liberal ideas.
Predictably, as the CRD staff veered right, so did its work. During the same four years, the number of cases involving racial discrimination against minorities and gender discrimination against women were cut in half. Meanwhile, cases of reverse discrimination against whites and religious discrimination against Christians shot up. When I asked the current head of the Civil Rights Division, Tom Perez, who was first hired by the administration of George H. W. Bush, what went wrong under the son, Perez became visibly agitated. "The whole process of decision-making was completely obliterated!" he said. "Hiring processes were hijacked! They weren't allowed to bring certain kinds of cases. They weren't allowed to make certain kinds of arguments. I think history will judge the prior administration as the darkest hour in the division's history."
As a graduating law student in 1976, Holder had applied for a job at the CRD and been rejected; the competition was fierce, and he was offered a position in another division instead. To see the flood of lawyers now leaving the CRD was, Holder told me, almost unimaginable. "It was hard to believe," he said. "It was a disgrace! Seventy percent of the career attorneys left! Think about that. Seventy percent. Seven. Oh." While other areas of the Bush administration's policy troubled Holder—including the establishment of secret prisons and the legal netherworld of Guantánamo Bay—it was the demolition of the CRD that caught him in the most personal place and made it impossible to decline the appointment as attorney general.
But as we sat in his office one afternoon, Holder confessed that he never imagined how much of his time would be consumed by other issues entirely. "The biggest surprise I've had in this job," he said, "is how much time the national-security issues take. Those are the primary things that I have to deal with in a post-9/11 world. From an eight-thirty meeting every morning, to the threat screen for the last twenty-four hours, to meetings during the course of the day. And almost inevitably there's something that I take home at night that is national-security related. Our National Security Division didn't even exist when I was last here!"
TO THE EXTENT that Holder did think about the national-security issues he would inherit, he had every reason to believe that his own views mirrored the president's. During the 2008 campaign, no other issue defined Barack Obama like his promise to restore America's commitment to international law. Other items may have topped his domestic agenda, but as a symbol of what Obama's candidacy meant, of what his election signified to the world, nothing conveyed his message of "change" like the pledge to repair American justice.
"Obama promised change on a variety of fronts, but the central front was the rule of law," says Georgetown law professor and civil-liberties scholar David Cole. "He promised to restore our standing in the world by restoring our commitment to constitutional and international law."
To Obama, the Justice Department under George W. Bush was not just part of the administration's misguided thinking after September 11; in many cases, it was the root cause of that thinking. From the abuses at Abu Ghraib to the gruesome interrogation practices at Guantánamo, many of the most damaging blows to American prestige could be traced to the doorstep of the DOJ. At the department's Office of Legal Counsel (OLC), lawyers had spent years dismantling the checks and balances that traditionally constrain a president's power. In a series of memos between 2001 and 2004, attorneys John Yoo and Jay Bybee developed a legal framework that would grant the White House almost unlimited power. As commander in chief, they argued, the president was immune to the law. He was not subject to the oversight of Congress or the review of the courts. He could send troops anywhere he wanted and order them to do whatever he liked. If that meant invading a country against the will of Congress or torturing prisoners in defiance of the law, there was nothing anyone could do to stop him. "Congress may no more regulate the president's ability to detain and interrogate enemy combatants, than it may regulate his ability to direct troop movements," the lawyers wrote. "Any effort by Congress to regulate the interrogation of battlefield combatants would violate the Constitution."
Of course, the claim that Congress cannot oversee the treatment of prisoners is precisely the opposite of what the Constitution actually says. The founding document gives Congress not only the right to "make rules regarding captures on land and water" but also the task of "organizing, arming, and disciplining" the military. Still, Yoo and Bybee went further. Having exempted the president from the law, they next set out to examine some of the things he might get away with—producing a detailed description of ten torture methods that they believed he was at liberty to order, such as wall-slamming and waterboarding.
Throughout the 2008 campaign, Obama was clear in his condemnation of these policies, positioning himself as a constitutional scholar devoted to restoring the rule of law. "No more ignoring the law when it is inconvenient," he bellowed in a speech during the summer of 2007. "That is not who we are, and it's not what is necessary to defeat the terrorists." By the time of his election fifteen months later, Obama's campaign literature promised not only to ban torture but to offer enemy combatants access to the courts. "The right of habeas corpus allows prisoners to ask a court to determine whether they are being lawfully imprisoned," one campaign document explained. "Recently, this right has been denied to those deemed 'enemy combatants.' Barack Obama strongly supports bipartisan efforts to restore habeas rights."
Separately, Holder was advocating the same policy. "Our government authorized the use of torture," he said in a 2008 speech, "secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused 'enemy combatants,' and authorized the use of procedures that both violate international law and the United States Constitution.… We owe the American people a reckoning."
Yet as Holder settled into the Justice Department in February 2009, that "reckoning" would become the first test of his independence as attorney general. On the campaign trail, Obama had blasted torture as illegal, but as president he had little incentive to prosecute the crime, which would be distracting and politically costly. At the DOJ, however, Holder was experiencing just the opposite pull. If the abuse of prisoners seemed illegal from the outside, on the inside he was privy to a host of new evidence that painted an even more damning picture. As he flipped through the pages of one report, Holder told me, reading descriptions of field agents holding a power drill to the head of one prisoner, strangling another, battering some, waterboarding others, and threatening to rape their wives and children, he was filled with "a combination of disgust and sadness."
"I have a great love for this country," he told me as we sat in his office one day. "I believe in the concept of this country. I believe in the rightness of the way we do things. And when confronted with the things I saw in that report—to think that Americans did those kind of things—that's totally at odds with what I believe about our country. At a fundamental, very personal, emotional level, it was inherently un-American."
It was also almost certainly illegal. Under the U.S. criminal code, torturing anyone, anywhere, for any reason is a crime, and anyone who "conspires to commit" torture is guilty under the same statute. By crafting the administration's torture policy, Yoo and Bybee could be implicated in thousands of criminal acts. "The memos are criminal," says attorney Ben Wizner of the ACLU's National Security Project. "They weren't written to explain the law—they were written to evade the law. They were part of a criminal conspiracy to create immunity for war crimes."
But as Holder considered launching an investigation, he immediately began to feel pushback from the White House. Behind the scenes, as Jane Mayer has reported in The New Yorker, Emanuel barked to an intermediary, "Didn't he get the memo that we're not relitigating the past?" And appearing on the Sunday-morning talk shows in April, Emanuel pressed the issue publicly, insisting that the authors of the torture memos "should not be prosecuted. This is not a time for retribution." At the White House podium, press secretary Robert Gibbs chimed in, "Those that followed the legal advice and acted in good faith on that legal advice shouldn't be prosecuted."
To call these comments inappropriate would be to praise the White House with faint damnation. Just a few years earlier, the Bush team had ignited a national scandal when political operatives tried to influence U.S. attorneys, yet the Obama administration had gone a step further, allowing operatives to apply political pressure on the attorney general himself. What's more, the pressure would continue for months. As late as August of last year, while Holder was still evaluating the evidence, Gibbs continued to rail against the investigation from the White House podium. "The administration has been very clear," he declared on August 20. "A hefty litigation looking backward is not what we believe is in the country's best interest."
So when Holder revealed four days later that he was assigning veteran prosecutor John Durham to investigate torture by the CIA, observers on both ends of the political spectrum held up the decision as proof of Holder's independence. Congressmen John Conyers and Jerry Nadler issued a press release "applauding" the decision, while congressman Pete King of New York erupted, "It's bullshit. It's disgraceful. You wonder which side they're on. Either the president is intentionally caving to the left wing of his party, or he's lost control of his administration." As if to reinforce the message, White House spokesman Bill Burton addressed reporters outside the president's compound on Martha's Vineyard, declaring Holder "a very independent attorney general."
Behind closed doors, however, a very different picture emerged. In his private conversations with Durham, Holder had dramatically limited the scope of the investigation—so much, in fact, that the prosecutor was forbidden to examine the torture policy at all. As the attorney general told me himself, "The instructions that I shared with John were that anybody who went by the OLC memos, that's fine. The question is: Are there people who went beyond those memos? Who exceeded those memos? And if there are, should we be investigating them?"
But when I spoke with lawyers following the case, I found that many of them were unaware of those instructions. In June, for example, ten months after the investigation began, I was chatting with the ACLU's Ben Wizner, who has followed the torture issue closely, when I realized that he was still laboring under the illusion that Durham might be investigating the OLC lawyers. "After all," Wizner said, "we don't know for sure what Durham's mandate is."
I mentioned that I had asked Holder myself, and Wizner said, "What did he say?"
"That it's limited to rogue agents," I said.
"Just the people who went outside the memos?" "Right."
"But not the architects?"
Wizner exhaled loudly. "Well," he said, "then it's on him."
What I didn't mention is the other thing Holder told me: that the reason he limited the investigation was politics. "You only want to look back at a previous administration if you feel you really have to," Holder said. "Because it has a potential chilling effect. If people who work in this administration today think that four years from now, or eight years from now, the decisions they make are going to be examined by a successor administration, you don't want that to happen. So that's a political consideration."
In this, Holder was undoubtedly right. To ignore evidence of a crime by the last administration, so that the current administration won't be examined in the future, is a political consideration indeed. Unfortunately, it wouldn't be the last.
IT TOOK ONLY three months for Holder and the White House to clash again, this time over the prisoners at Guantánamo Bay. By now, Holder's indictment of the September 11 mastermind, Khalid Sheikh Mohammed, and Obama's decision to overrule the attorney general and suspend the case, have been widely discussed in other pages. But the machinations behind those events remain far more complex than most accounts portray.
The roots of the administration's KSM decision extend even before Obama took office. In the months leading up to the inauguration, lawyers on the transition team had been drafting a series of presidential orders, including one that would close Guantánamo prison. But when Admiral Mike Mullen, the chairman of the Joint Chiefs of Staff, informed Obama's lawyers that he would be scouring those orders for clues about where to send detainees in the future, Obama instructed his team to write another order addressing that question directly. In particular, the new order established a special task force, which included Holder, Hillary Clinton, and Defense Secretary Robert Gates, to write guidelines by which prisoners would be sent to either military or civilian court. For Obama, those guidelines were essential to bring decision-making into a clear legal framework. "The president said time and again, 'I don't want it to appear that the military commissions are a place where we try people we can't convict in civilian court,' " recalls a senior White House source.
The guidelines that emerged from the task force last summer erected clear rules: If the crime is committed against a civilian target on U.S. soil, the case goes to civilian court; if the crime is against U.S. troops overseas, the case goes to a military commission. And one of the first detainees to go through the new guidelines was KSM. Since most of the victims of September 11 were civilians and the attacks took place on U.S. soil, the guidelines steered KSM into civilian court. "We had the protocol and applied it," Holder said. "There were a small number of factors, and we went through them all."
Still, Holder asked for an additional layer of confidence. Before committing to a civilian trial, he approached the U.S. attorneys most likely to handle the case with a question: Could the prosecutors obtain a conviction without using any of Mohammed's own statements? That meant throwing out everything KSM had admitted while being tortured as well as every other statement he had made in six years of custody—even voluntary comments, years after the torture stopped. The U.S. attorneys assured Holder that they could still win.
For Holder the decision also had a personal significance, one that he would have to wrestle alone. As an opponent of the death penalty, he is routinely forced to set aside his own views and make peace with the law. Each time he faces a death-penalty case, he goes through a minor ritual: "I bring the case file home," he said. "I wait until Sharon's in bed, the kids are in bed, and I sit at the table in my kitchen, the breakfast nook, and I spread the stuff out. I don't want to be distracted. TV's off. No one else is around. And I pore through all that material just to make sure that, to the extent I can, I'm comfortable with the decision that I make." He added, "I'm trained as a lawyer to put aside my personal feelings and apply the law, and in some instances that's easy to do, but when it comes to those death-penalty decisions, it's really difficult. You're talking about the life of a human being."
Holder knew that the decision to try KSM in civilian court would make the death penalty more likely. Mohammed referred to himself as the "director" of the attacks and was expected to plead guilty. In a military commission, it's unclear whether a prisoner who pleads guilty can be put to death, but in civilian court, he definitely can. In late October, with the case hanging in the balance, Holder took the KSM file home. He waited for the house to fall quiet, unfolded the materials, and considered the details one last time. "I did everything the same as any other death-penalty case," he told me. Once again Holder made his peace with the law. On November 13, 2009, he announced that Khalid Sheikh Mohammed and four other September 11 conspirators would be tried in Manhattan federal court. He instructed prosecutors to seek the death penalty.
The political furor that erupted next took Holder completely by surprise, as New York politicians worked each other into a frenzy over a litany of imagined disasters—the cost of increased police and traffic downtown, the heightened risk of a terror attack. As Senator Chuck Schumer and Mayor Michael Bloomberg lobbied Rahm Emanuel to intervene, Republicans joined the firestorm. Led by Senator Lindsey Graham of South Carolina, a former military lawyer himself and one of the crucial votes to close Guantánamo prison, Republicans deluged the White House with outrage that KSM would be tried as a common criminal. "Lindsey was calling Rahm all the time," says a White House source. "And Rahm would say, 'Hey, look, you've gotta call Eric about this.' "
According to people familiar with Emanuel's thinking, the chief of staff was not so much opposed to civilian courts as he was agnostic. What mattered to Emanuel was a conviction, which would serve justice and the president's political interests. Where that conviction took place was incidental. "He didn't understand why Eric thought it was so important to use the civilian courts," says a source familiar with the White House internal debate. "If there's political pressure against it, why not try the case in a military commission? Politically there was no upside to keeping it in civilian court. There was only downside. Rahm's position was, 'We're going to lose Lindsey, and then we can't close Guantánamo, and it's gonna be Eric's fault.' Everything is personal with Rahm."
After two months of frantic phone calls between the White House, Schumer, Graham, and Holder, Obama finally pulled the plug. Citing national-security concerns, he invoked the right to choose the trial venue himself. In doing so, Holder aides point out, Obama upended his own detainee policy before a single prisoner had been tried. After going to great lengths to inject structure and law into the process, after assigning senior cabinet officials to devise a coherent system of rules, he then revoked those rules and returned the detainees to a state of legal limbo.
"It was wildly unfortunate," says David Ogden, Holder's former deputy attorney general. "The president gave that decision to the attorney general. The attorney general made it. Then the White House had to deal with a political reality in Congress. And the situation was assessed as being politically untenable." Others are less forgiving, calling Obama's capitulation an insult to Holder and a regression to the arbitrary policy of the Bush years. "There is an important principle at stake here," Holder told me. "You don't shy away from using this great system for political reasons. It hampers our ability as we interact with our allies if we don't stand for the rule of law when it comes to a case that is politically difficult to bring." Among Holder's political allies, the blame for KSM lay not with Rahm but Obama. "Rahm was critical," says one former White House official. "But the president ultimately made the call."
IN THE MONTHS since Holder lost custody of the trial, his place in the administration has only become more conflicted. In some respects, he has enjoyed an extraordinary year. With an infusion of more than one hundred new employees at the Civil Rights Division, for example, and a budget increase of $22 million per year, the CRD has grown faster and accomplished more than at any other time since the 1960s. In the fiscal year that ended in September, the criminal section brought a record number of cases, the housing section brought its largest case in history, and the CRD won the largest settlement ever awarded in a lending-discrimination suit, more than $6 million on behalf of 2,500 African-American homebuyers. But the most telling measure of the CRD's recovery may be its staff. "Virtually every section is bringing back people who were here before," says division head Tom Perez. "The diaspora have returned."
Yet on national security, Holder continues to struggle for footing. In case after case, he seems to have reconciled himself to policies that he would have once condemned. In January, after a review by the Office of Professional Responsibility concluded that the authors of the torture memos had committed professional misconduct, Holder allowed the supervisor of that office, David Margolis, to overturn the committee's conclusion and absolve the lawyers of wrongdoing. Sources close to Holder say that he was disappointed by Margolis's decision and believed the finding of misconduct was correct—but was unwilling to overrule a nonpolitical employee on such a sensitive issue. That seems reasonable, except that other DOJ sources say it's ridiculous to portray Margolis as nonpolitical. "His whole approach," one longtime DOJ insider told me, "is skewed by his desire to protect the department from embarrassment."
In April, Holder watched his nominee to head the Office of Legal Counsel, where the torture memos originated, withdraw from consideration after more than a year of painful stalemate in the Senate Judiciary Committee. Although Dawn Johnsen refuses to blame Holder or Obama for allowing her nomination to fail, she says a primary objection among Senate Republicans was her opposition to torture. As a law professor during the Bush years, Johnsen was vehement in her criticism of the OLC opinions. "That played a big role in the failure of my nomination," she told me from her cell phone as she made the long drive home to Indiana this summer. "But I have no regrets about taking those positions." Two Republican staffers on the committee confirmed Johnsen's explanation. Six years after the OLC memos, the only lawyer to be punished for the torture policy is one who strenuously opposed it.
This summer, Holder watched the administration's first terror trial, of the child soldier Omar Khadr, begin—not in civilian court in view of the world, but on the Guantánamo base itself, using a hastily revised rule book that Pentagon lawyers did not unveil until the morning of the first hearing, and with a handful of the most respected Guantánamo journalists banned from observing the proceedings and ordered off the base—an absurdist spectacle that one DOJ official described to me as "making the case against military commissions for us."
Of the fifty-seven habeas hearings that have taken place at Guantánamo, some thirty-eight prisoners have been set free by a judge. Yet the Holder Justice Department is denying habeas hearings to the prisoners at every other U.S. facility, including more than 600 detainees at Bagram Air Base in Afghanistan. Despite clearly promising to grant habeas to enemy combatants, Holder and Obama now insist that they never intended to do any such thing. Only the prisoners who happen to be housed in Guantánamo, they say, have a right to court. Prisoners who were shipped anywhere else have an entirely different set of legal rights—which is to say, none at all.
And in September, Holder found himself in perhaps the most surprising position of all—defending the administration's right to assassinate a U.S. citizen, even if he hasn't been convicted of any crime. According to a Justice Department brief filed in the case of Anwar al Awlaki, a radical Imam who was born in the U.S., the Obama Administration now claims it has the right to assassinate a citizen based on suspicion alone.
All of which raises the fundamental question that surrounds Holder's legacy at Justice: Given his failure to provide a "reckoning" for torture, given his refusal to extend the rule of law to enemy combatants, given his inability to defend citizens against assassination by their own government, and given that he has already accomplished the thing that initially brought him to the DOJ, what, precisely, keeps him in the job now?
On my last meeting with Holder, I decided to ask him whether the administration had ever seriously intended to grant court hearings to enemy combatants. "Did you even discuss it?" I asked.
Holder shrugged. "We took a view with regard to whether habeas applied at Bagram, and the courts upheld us," he said, "but there have been cases at Guantánamo."
"Thirty-eight of those cases, you've lost," I pointed out. "Doesn't that make you question whether you should offer habeas to the 600 prisoners at Bagram?"
"No," he said. "I mean, I think people in the theater of war are different than what you have in Guantánamo."
"What's the difference between a longtime Bagram prisoner and a longtime Guantánamo prisoner?" I asked. "Isn't there any duration after which they deserve a hearing?"
"In the past," he said, "a detainee could be held for the duration of the conflict."
"You've got to admit, that seems outrageously broad. This conflict could go on forever."
"But see, that's the deal," Holder said. "This conflict is different from what we have experienced in the past, where there were formal declarations of war, and nations were fighting nations. Now it's something different. So we've tried to apply the traditional law to this new situation."
"But before the inauguration," I said, "both you and the president said that habeas should apply to enemy combatants."
"I'm not sure I ever opined on that," Holder said.
"I could read you a quote."
Holder laughed uncomfortably.
"Here's the quote: 'Our government authorized the use of torture, approved secret electronic surveillance without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants,' and a few other things."
Holder was silent. "But I was talking about Guantánamo," he said. "I'm pretty sure I was talking about Guantánamo."
This seemed wrong, but I changed the subject. "What about the Awlaki case?" I asked. "How do you feel about the argument that the government can kill a citizen without a trial?"
Holder nodded, thinking. Then he said slowly, "I'm not saying there's a policy like that, but a couple of things strike me. First off, there's no denial on his part that he's an active operational terrorist. Two, he has the ability to make use of the courts. He chose not to do that. His father filed on his behalf. And the notion that the courts intervene in an armed struggle seems inconsistent with the separation of powers."
"If you wanted to listen to his telephone calls, you'd need a court order," I pointed out. "But not to kill him?"
"The law is pretty clear that a person who becomes an active participant in the Al Qaeda effort is subject to the same treatment as one who is actively engaged in battle against us."
"But that's what a court would have to determine, isn't it? Whether he's with Al Qaeda or not."
"Well," Holder said, "we went through a whole series of reasons why that lawsuit should fail. The lawsuit just doesn't hold water."
As we went back and forth, I began to realize that it was impossible to know how much of Holder's argument he really believed, and how much he was merely willing to say. Like any good political appointee, he was prepared to defend the policy whether he liked it or not. And in that case, maybe it didn't matter what he supported; promoting the policy was supporting it. I was reminded of something one of his friends had told me, a former DOJ official who has known Holder since the beginning of his career: "Eric has this instinct to please. That's his weakness. He doesn't have to be told what to do—he's willing to do whatever it takes. It's his survival mechanism in Washington."
And then I remembered another moment, months earlier, sitting in his office on the heels of the KSM decision. Holder seemed deflated and tired, and in an attempt at humor, I pointed to the painting of Bobby Kennedy and made a joke about the independence of the attorney general. Holder bristled. "Some people say Bobby was pretty independent," he snapped.
I nodded, and he seemed to relax. "But yeah," he said, pointing at another painting across the room. "By contrast, Elliot Richardson."
As Nixon's third attorney general, Richardson lasted only five months, resigning in protest when the president ordered him to fire the Watergate prosecutor. "He has just one year under his name," Holder mused. "There's no dash. There's no hyphen. He lasted just a number of months, but he did the job. He did the absolute right thing. When asked to do something he felt was inconsistent with his oath as attorney general, he resigned."
"So," he said quietly. "He's a hero."