"While one must always be cautious in seeking government investigation of the media for the obvious First Amendment concerns..."

"... this is not actually an investigation of the media, but an investigation of criminal acts undertaken by those masquerading as members of the media."

Eliot Spitzer, writing in Slate, thinks the Murdoch scandal (although it's occurring in the UK) is "an opportunity for the Justice Department to show it can flex its muscles at the right moment."

Eric Holder is asked but won't answer whether he'd have opposed a military trial for bin Laden if bin Laden had been taken alive.

Testifying before the House Judiciary Committee:

“That’s a hypothetical. I’m not sure it’s particularly relevant,” Holder said in response to a question from Rep. Dan Lungren (R-Calif.)....

“I think it’s fair to ask, since you opposed a military trial for Khalid Sheikh Mohammed, whether you would have opposed a military trial for Osama bin Laden,” Lungren said.

Again declining to answer, Holder said that his position on military tribunals has often been mischaracterized. He noted that, on the same day in November 2009 that he announced a civilian trial for Mohammed, he announced that five other detainees would get military trials.

“I think our military commissions, especially since they’ve been modified, are constitutional and can give fair trials,” he said.

Holder also pushed back against another line of questioning from Lungren, about whether information provided by detainees who underwent “enhanced interrogation techniques” like waterboarding contributed to finding bin Laden. Holder said there was “a mosaic of sources” of intelligence, and he did not go into details.

The failure to answer speaks for itself. To me, it says that he considers it wrong/illegal but wants it done anyway. Wants it done, but doesn't want to be the one to say "do it."

ADDED: Let's remember that last month, after Obama announced that KSM would be tried before a military commission in Guantanamo, that Eric Holder was adamant about the correctness of his original decision to try him in federal court in Manhattan. He blamed Congress for making it impossible to do that, and he basically stomped out of the room when asked about it.

And in March, 2010, Holder avoided the question of how he'd deal with a captured bin Laden: "The reality is that we will be reading Miranda rights to the corpse of Osama Bin Laden - he will never appear in an American courtroom." Pushed, he got angry:

When Rep. John Culberson (R-Tex.) said that if Bin Laden himself were arrested, it would be absurd to give him the same due process afforded Manson, Holder erupted.

Charges he coddles terrorists get his "blood boiling," the attorney general conceded....

Holder repeated - slowly - to the Texas congressman that "the possibility simply does not exist" that Bin Laden will ever be arraigned in any court....

"The possibility of capturing him alive is infinitesimal - he will be killed by us or he will be killed by his own people," Holder said.

So... was bin Laden shot because he resisted — the official story — or because a live, captured bin Laden would have torn the Obama administration apart?

"My people."

Should the Attorney General be saying "my people"... and not mean the People of the United States?

Obama orders Justice Department to drop its defense of the Defense of Marriage Act.

Politico reports:

“After careful consideration, including a review of my recommendation, the president has concluded that given a number of factors, including a documented history of discrimination, classifications based on sexual orientation should be subject to a more heightened standard of scrutiny,” [Attorney General Eric] Holder said in a statement.

“The president has also concluded that Section 3 of DOMA, as applied to legally married same-sex couples, fails to meet that standard and is therefore unconstitutional. Given that conclusion, the president has instructed the department not to defend the statute in such cases. I fully concur with the president’s determination.”

(Last fall, I was very critical of Obama's willingness to defend DOMA in the courts.)

ADDED: Watch me — last October — criticize Obama for fighting against gay rights in the courts:



Hmmm. October... Had to win some votes back then.

Even California didn't want to legalize non-medical marijuana.

Prop 19 failed. In yesterday's Bloggingheads — the "Non-Obsolete Edition" — Matt Welch and I talked about the effort to legalize the so-called "recreational" use of marijuana, which is far less popular than the "medical" use. You can watch the whole segment here, but — I know these Bloggingheads things are long — I don't want you to miss the part where I connect the favoring of medical legalization to left-wing values that I despise. It's only 80 seconds:



Note that the "medicinal" use of alcohol — "self-medicating" — is considered especially bad. The good alcohol use is for personal pleasure — one might say the pursuit of happiness — and most certainly not out of a physical need. Isn't it odd that it's the other way around for marijuana?

***

If you watch the whole segment — 16+ minutes long, sorry — there's a lot of discussion of the way the federalism problem would work out if the state stopped criminalizing marijuana. It's a misnomer to say that would "legalize" marijuana, because the federal crimes still apply. It would still be a crime to possess, grow, or distribute marijuana. The federal government can't force state officials to carry out the enforcement of the federal law. (It can lure them into that role with conditions on spending, but it can't commandeer the state law enforcement personnel. That's Printz.)

As Matt notes, Eric Holder announced a few weeks ago, that if Prop 19 passed, federal drug agents would "vigorously enforce" the federal law in California. California's a huge state, and that would be damned hard to do. I suggest that Holder may have only said that to try to influence California voters to reject Prop 19, and Matt seems certain that was the reason. And that seemed to work.

It would have been quite chaotic if Prop 19 had gone the other way. In the 16+ minute clip, you can see that Matt loves the idea of the chaos that would destabilize everything with, perhaps, the ultimate result that the federal government would give up on its marijuana crimes. I, on the other side, resist the chaos. I don't think it would work well to have something appear to be legal and at the same time be a very real federal crime. Much as I like decentralized law and the benefits of federalism, where there is valid federal law, it supersedes state and local law. That is the constitutional structure.

"Attorney General Eric Holder... said that legalizing recreational marijuana in California would be a 'significant impediment' to the government's joint efforts with state and local law enforcement..."

I'm picturing the Washington Post editors high and dorkily giggling.

"Watching Attorney General Eric Holder struggle on Wednesday to answer senators’ questions about the detention and trial of terrorism suspects..."

Watching this NYT op-ed struggle to avoid holding Holder responsible for his own shortcomings....

Lindsey Graham devastates Eric Holder.

Crushing:



Holder imagines that he can hide inside that "thoughtful" routine that Obama so often relies on, but it is utterly pathetic here. Either he knows damned well what he's doing and he's lying or he's outrageously unqualified for his job. His evasive style is so similar to Obama's that he makes Obama look worse.

Holder holds forth.

On the KSM trial.

Khalid Sheikh Mohammed — the alleged 9/11 mastermind... will go to trial in federal court in NYC.

The WSJ says that announcement, from Attorney General Eric Holder, will come today.

Mr. Mohammed has claimed authorship of the attacks, but he has also accused U.S. interrogators of torturing him. U.S. officials have acknowledged the use of harsh tactics, including water boarding, a technique intended to simulate drowning, which Mr. Obama and other government officials have called torture.

So he is the confessed mastermind of 9/11, but the court, bound by the usual precedents, may need to exclude the confession. If the Obama administration believes this was torture, then surely it was the sort of coercion that will require the exclusion of the confession. I assume the administration has worked out how to deal with this problem. But how? Imagine Mohammed acquitted!

President Obama said:

“I’m absolutely convinced that Khalid Shaikh Mohammed will be subject to the most exacting demands of justice... The American people insist on it and my administration insists on it.”

The most exacting demands of justice bind the government too. And I'm absolutely convinced that Professor Obama knows these 2 sides to that assertion of his. But do you think the American people insist that Mohammed's confession be excluded if after the same pressure to confess, a common criminal's confession would be excluded?

Documents have shown that the CIA used waterboarding — a controlled drowning technique — against Mr. Mohammed 183 times in March 2003. Mr. Nashiri is one of two other detainees known to have been waterboarded before the Bush administration shut down the program, which high-level officials had approved after the Justice Department wrote legal memorandums arguing that the president, as commander-in-chief, could authorize interrogators to bypass anti-torture laws.

And what of this trial in NYC? The federal courthouse is in lower Manhattan, not far from Ground Zero. Perhaps the citizens want the trial where they can see it, or do they fear the creation of an unnecessary terrorist target in their midst? The linked NYT article says NYC is different from those other places where people fretted about such things:

In March, for example, when the administration prepared to bring Ahmed Kahlfan Ghailani, a suspect in the 1998 bombings of United States embassies in Africa which killed 224 people, to face trial there, Senator Charles Schumer, Democrat of New York, reacted with equanimity, saying that the city was well-accustomed to handling high-profile terror suspects.

“Bottom line is we have had terrorists housed in New York before,” Mr. Schumer said at a March news conference at the Capitol with other Democratic leaders. “They’ve been housed safely.”

Mr. Schumer at the time pointed to the “blind sheikh” Omar Abdel Rahman, convicted in connection with the 1993 World Trade Center bombing, as an example. “The main concern is bringing these terrorists to justice and making sure the public is safe,” Mr. Schumer said. “I have faith that the administration will do both.”

So if we believe the assertions of Chuck Schumer, then NY really is different. Meanwhile, there is the courtroom that the Bush administration built in Guantánamo, absolutely isolated from American citizens.

CORRECTION: The orignal title included an incorrect reference to "Abd al-Rahim al-Nashiri — the alleged planner of the USS Cole bombing." He will not be tried in NYC.

Do we need an independent prosecutor for ACORN?

Chicago polisci prof Charles Lipson makes the argument:

Independent prosecutors should not be appointed lightly. But in this case, there are good reasons why Atty. Gen. Eric Holder and other political appointees in the Justice Department should step aside. First, although no allegations have yet touched the Obama campaign, ACORN did have significant ties to the campaign and other progressive causes. Published reports show that ACORN and its subsidiaries received some $800,000 from the Obama campaign to get out the vote. Second, ACORN is intimately tied to the Service Employees International Union, one of President Barack Obama's most powerful and vocal supporters.

ACORN's close ties to the progressive movement and Democratic Party mean that there will be little public confidence if Holder decides not to pursue an ambitious investigation and ultimately prosecute....

What we have seen on tape cries out for a serious, independent investigation to determine if ACORN and its affiliates are a criminal enterprise, whether they have spent federal grants lawfully, whether they helped taxpayers file fraudulent returns, and whether they violated laws prohibiting tax-exempt organizations from engaging in partisan politics. These are big questions, and the public needs to know that Washington's answers are fair and impartial.

Dick Cheney condemns the CIA investigation.

On Fox News Sunday today:

We ask those people to do some very difficult things. Sometimes, that put their own lives at risk. They do so at the direction of the president, and they do so with the -- in this case, we had specific legal authority from the Justice Department. And if they are now going to be subject to being investigated and prosecuted by the next administration, nobody's going to sign up for those kinds of missions. It's a very, very devastating, I think, effect that it has on morale inside the intelligence community. If they assume that they're going to have to be dealing with the political consequences — and it's clearly a political move. I mean, there's no other rationale for why they're doing this — then they'll be very reluctant in the future to do that. ...

We had the president of the United States, President Obama, tell us a few months ago there wouldn't be any investigation like this, that there would not be any look back at CIA personnel who were carrying out the policies of the prior administration. Now they get a little heat from the left wing of the Democratic Party, and they're reversing course on that....

The fact of the matter is the lawyers in the Justice Department who gave us those opinions had every right to give us the opinions they did. Now you get a new administration and they say, well, we didn't like those opinions, we're going to go investigate those lawyers and perhaps have them disbarred. I just think it's an outrageous precedent to set, to have this kind of, I think, intensely partisan, politicized look back at the prior administration.

I guess the other thing that offends the hell out of me, frankly, Chris, is we had a track record now of eight years of defending the nation against any further mass casualty attacks from Al Qaeda. The approach of the Obama administration should be to come to those people who were involved in that policy and say, how did you do it? What were the keys to keeping this country safe over that period of time?

ADDED: John McCain on "Face the Nation":

"I believe that the president was right when he said we ought to go forward and not back. I worry about the morale and effectiveness of the CIA. I worry about this thing getting out of control," the Arizona senator said....

McCain admitted that he was "radically opposed" to the interrogation techniques of the former administration and said, "I think it harmed us."...

"I think these interrogations once publicized helped al-Qaeda recruit. I got that from an al Qaeda operative in a prison camp in Iraq," McCain said. "I think the ability to work with our allies was harmed."

A.G. Eric Holder will void the conviction of Sen. Ted Stevens and dismiss the indictment.

Nina Totenberg reports:

The judge in the Stevens case has repeatedly delayed sentencing and criticized trial prosecutors for what he's called prosecutorial misconduct. At one point, prosecutors were held in contempt. Things got so bad that the Justice Department finally replaced the trial team, including top-ranking officials in the office of public integrity. That's the department's section charged with prosecuting public corruption cases.

With more ugly hearings expected, Holder is said to have decided late Tuesday to pull the plug....

Holder's decision is said to be based on Stevens' age — he's 85 — and because Stevens is no longer in the Senate. Perhaps most importantly, Justice Department officials say Holder wants to send a message to prosecutors throughout the department that actions he regards as misconduct will not be tolerated.

Holder began his career in the department's public integrity section; and, according to sources, he was horrified by the failure of prosecutors to turn over all relevant materials to the defense.

Good for Holder. This says nothing about Stevens's guilt or innocence, of course. This is about the insistence that those who wield power refrain from abuse.

"Attorney General Eric Holder said Wednesday the Guantanamo detention center is a well-run, professional facility that will be difficult to close..."

"... but he is still going to do it."

Get ready. They're not going to close it. Remember, I made a bet with Emily Bazelon, and I'm going to win: