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Republicans who endorsed Holder have second thoughts
By: Byron York
Chief Political Correspondent
11/17/09 6:14 AM EST
Last January, several Republican legal stars wrote a letter to the Senate Judiciary Committee supporting Eric Holder's nomination to be attorney general. Now, in light of Holder's decision to grant 9/11 mastermind Khalid Sheikh Mohammed full American constitutional rights and try him in federal court in New York, some of those veteran lawyers are having second thoughts.
The January letter called Holder an "extraordinary lawyer" of "unfailing integrity" who is "superbly qualified" to lead the Justice Department and whose appointment as the first African-American attorney general "should be hailed as a milestone." "From his experience Eric fully understands and appreciates the constant threat posed by al Qaeda and Islamic extremists," the GOP lawyers wrote. "[He] is the right man at the right time to protect our citizens in the critical years ahead."
The Khalid Sheikh Mohammed decision, in which Holder abandoned the carefully-constructed military tribunal system in favor of a risky prosecution in civilian court, troubles some of the Republicans who once supported Holder. "If the decision was his, and he made the decision and told the president, then I have some real qualms about my support for him," says Makan Delrahim, a former Justice Department official and former staff director of the Judiciary Committee. "I personally have a tough time knowing the rationale for this. We spent so much time making the military tribunals conform to constitutional standards to deal with exactly this type of situation."
Holder says the decision was indeed his. On PBS's "NewsHour" Friday, Holder said he consulted with a number of people in making the decision but did not tell the president beforehand. "Just informed him of the decision," Holder said. When anchorman Jim Lehrer asked, "You didn't say, 'What do you think about it, Mr. President?'" Holder replied, "Nope."
Another lawyer who signed the letter -- he asked that his name not be used -- says he "probably would not" sign again, if he had known what Holder would do in the Khalid Sheikh Mohammed matter. Holder and the Obama Justice Department are motivated by a "naïve" view of the court system's readiness to handle the case, the lawyer said.
A third signer of the letter who leaves no doubt about his opposition to the decision is Joseph DiGenova, former United States Attorney for the District of Columbia. "It's insanity, absolute insanity," says DiGenova. "I think it's a reckless decision borne of ideology, absolutely bereft of any reason for it happening. It's just mind boggling." DiGenova cites a long list of reasons for not holding the trial in an American civilian court: "It's going to be extremely difficult to make a case against him. The litigation involved in the case is going to be lengthy. You make New York a target again. The judge is going to have protection for the rest of his life. Some of the jurors may want protection for the rest of their lives."
Both DiGenova and his wife, former Justice Department and Senate Judiciary Committee official Victoria Toensing, signed the letter endorsing Holder. While DiGenova does not say he would not sign the letter if he had it to do over again, the Khalid Sheikh Mohammed decision is troubling. "It would have raised serious questions," DiGenova says. "This type of thing is really important -- it's very disturbing and so, so unnecessary."
DiGenova says he and Toensing supported Holder, despite the clear ideological differences, because they knew and respected him and wanted to see changes at a Justice Department damaged by events like the error-ridden prosecution of then-Sen. Ted Stevens. "We know Eric, and we like him," says DiGenova. "We supported him because we thought the department needed a revamping, because it had been so messed up by the Bush people. There were prosecutors run amok -- just look at the Stevens case, which happened under Bush." Holder's nearly nine months as attorney general is "a mixed bag," says DiGenova. "We still think he's a good guy, and we think he's honest. We just violently disagree with this decision."
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