Attorney General May Probe Bush Torture Policy

It's the morning after Independence Day, and Eric Holder Jr. is feeling the weight of history. The night before, he'd stood on the roof of the White House alongside the president of the United States, leaning over a railing to watch fireworks burst over the Mall, the monuments to Lincoln and Washington aglow at either end. "I was so struck by the fact that for the first time in history an African-American was presiding over this celebration of what our nation is all about," he says. Now, sitting at his kitchen table in jeans and a gray polo shirt, as his 11-year-old son, Buddy, dashes in and out of the room, Holder is reflecting on his own role. He doesn't dwell on the fact that he's the country's first black attorney general. He is focused instead on the tension that the best of his predecessors have confronted: how does one faithfully serve both the law and the president?

Alone among cabinet officers, attorneys general are partisan appointees expected to rise above partisanship. All struggle to find a happy medium between loyalty and independence. Few succeed. At one extreme looms Alberto Gonzales, who allowed the Justice Department to be run like Tammany Hall. At the other is Janet Reno, whose righteousness and folksy eccentricities marginalized her within the Clinton administration. Lean too far one way and you corrupt the office, too far the other way and you render yourself impotent. Mindful of history, Holder is trying to get the balance right. "You have the responsibility of enforcing the nation's laws, and you have to be seen as neutral, detached, and nonpartisan in that effort," Holder says. "But the reality of being A.G. is that I'm also part of the president's team. I want the president to succeed; I campaigned for him. I share his world view and values."

These are not just the philosophical musings of a new attorney general. Holder, 58, may be on the verge of asserting his independence in a profound way. Four knowledgeable sources tell NEWSWEEK that he is now leaning toward appointing a prosecutor to investigate the Bush administration's brutal interrogation practices, something the president has been reluctant to do. While no final decision has been made, an announcement could come in a matter of weeks, say these sources, who decline to be identified discussing a sensitive law-enforcement matter. Such a decision would roil the country, would likely plunge Washington into a new round of partisan warfare, and could even imperil Obama's domestic priorities, including health care and energy reform. Holder knows all this, and he has been wrestling with the question for months. "I hope that whatever decision I make would not have a negative impact on the president's agenda," he says. "But that can't be a part of my decision."

Holder is not a natural renegade. His first instinct is to shy away from confrontation, to search for common ground. If he disagrees with you, he's likely to compliment you first before staking out an opposing position. "Now, you see, that's interesting," he'll begin, gently. As a trial judge in Washington, D.C., in the late 1980s and early '90s, he was known as a tough sentencer ("Hold-'em Holder"). But he even managed to win over convicts he was putting behind bars. "As a judge, he had a natural grace," recalls Reid Weingarten, a former Justice Department colleague and a close friend. "He was so sensitive when he sent someone off to prison, the guy would thank him." Holder acknowledges that he struggles against a tendency to please, that he's had to learn to be more assertive over the years. "The thing I have to watch out for is the desire to be a team player," he says, well aware that he's on the verge of becoming something else entirely.

When Holder and his wife, Sharon Malone, glide into a dinner party they change the atmosphere. In a town famous for its drabness, they're an attractive, poised, and uncommonly elegant pair—not unlike the new first couple. But they're also a study in contrasts. Holder is disarmingly grounded, with none of the false humility that usually signals vanity in a Washington player. He plunges into conversation with a smile, utterly comfortable in his skin. His wife, at first, is more guarded. She grew up in the Deep South under Jim Crow—her sister, Vivian Malone Jones, integrated the University of Alabama—and has a fierce sense of right and wrong. At a recent dinner in a leafy corner of Bethesda, Malone drew a direct line from the sins of America's racial past to the abuses of the Guantánamo Bay detention center. Both are examples of "what we have not done in the face of injustice," she said at one point, her Southern accent becoming more discernible as her voice rose with indignation. At the same party, Holder praised the Bush administration for setting up an "effective antiterror infrastructure."

Malone traces many of their differences to their divergent upbringings. "His parents are from the West Indies..he experienced a kinder, gentler version of the black experience," she says. Holder grew up in East Elmhurst, Queens, a lower-middle-class neighborhood in the shadow of New York's La Guardia Airport. The neighborhood has long been a steppingstone for immigrants, but also attracted blacks moving north during the Great Migration. When Holder was growing up in the 1950s, there were fewer houses—mostly semi-detached clapboard and brick homes, like the one his family owned on the corner of 101st Street and 24th Avenue—and more trees. Today the neighborhood is dominated by Mexican, Dominican and South Asian families, with a diminishing number of West Indians and African-Americans.

As we walk up 24th on a recent Saturday, Holder describes for me a happy and largely drama-free childhood. The family was comfortable enough. His father, Eric Sr., was in real estate and owned a few small buildings in Harlem. His mother, Miriam, stayed at home and doted on her two sons. Little Ricky, as he was known, was bright, athletic, and good-natured. As we walk past the baseball diamond where Holder played center field, he recalls how he used to occasionally catch glimpses of Willie Mays leaving or entering his mansion on nearby Ditmas Boulevard. Arriving at the basketball courts of PS 127, Holder bumps into a couple of old schoolyard buddies, greets them with a soul handshake and falls into an easy banter, reminiscing about "back in the day" when they dominated the hardcourt. "Ancient history," says Jeff Aubry, now a state assemblyman. "When gods walked the earth," responds Holder, who dunked for the first time on these courts at age 16.

Holder doesn't dispute the idea that his happy upbringing has led to a generally sunny view of the world. "I grew up in a stable neighborhood in a stable, two-parent family, and I never really saw the reality of racism or felt the insecurity that comes with it," he says. "That edge that Sharon's got—I don't have it. She's more suspicious of people. I am more trusting." There's a pause, and then, with a weary chuckle, one signaling gravity rather than levity, Holder says, "Lesson learned." And then adds, under his breath: "Marc Rich."

The name of the fugitive financier pardoned—with Holder's blessing—at the tail end of the Clinton administration still gnaws at him. It isn't hard to see why. As a Justice Department lawyer, Holder made a name for himself prosecuting corrupt politicians and judges. He began his career in 1976, straight out of Columbia Law School, in the Justice Department's Public Integrity Section, where prosecutors are imbued with a sense of rectitude and learn to fend off political interference. And though Holder has bluntly acknowledged that he "blew it," the Rich decision haunts him. Given his professional roots, he says, "the notion that you would take actions based on political considerations runs counter to everything in my DNA." Aides say that his recent confirmation hearings, which aired the details of the Rich pardon, were in a way liberating; he aspires to no higher office and is now free to be his own man. But his wife says that part of what drives him today is a continuing hunger for redemption.

When I ask Malone the inevitable questions about Rich, she looks pained. "It was awful; it was a terrible time," she says. But she also casts the episode as a lesson about character, arguing that her husband's trusting nature was exploited by Rich's conniving lawyers. "Eric sees himself as the nice guy. In a lot of ways that's a good thing. He's always saying, 'You get more out of people with kindness than meanness.' But when he leaves the 'nice guy' behind, that's when he's strongest."

Any White House tests an attorney general's strength. But one run by Rahm Emanuel requires a particular brand of fortitude. A legendary enforcer of presidential will, Emanuel relentlessly tries to anticipate political threats that could harm his boss. He hates surprises. That makes the Justice Department, with its independent mandate, an inherently nervous-making place for Emanuel. During the first Clinton administration, he was famous for blitzing Justice officials with phone calls, obsessively trying to gather intelligence, plant policy ideas, and generally keep tabs on the department.

One of his main interlocutors back then was Holder. With Reno marginalized by the Clintonites, Holder, then serving as deputy attorney general, became the White House's main channel to Justice. A mutual respect developed between the two men, and an affection endures to this day. (Malone, a well-regarded ob-gyn, delivered one of Emanuel's kids.) "Rahm's style is often misunderstood," says Holder. "He brings a rigor and a discipline that is a net plus to this administration." For his part, Emanuel calls Holder a "strong, independent attorney general." But Emanuel's agitated presence hangs over the building—"the wrath of Rahm," one Justice lawyer calls it—and he is clearly on the minds of Holder and his aides as they weigh whether to launch a probe into the Bush administration's interrogation policies.

Holder began to review those policies in April. As he pored over reports and listened to briefings, he became increasingly troubled. There were startling indications that some interrogators had gone far beyond what had been authorized in the legal opinions issued by the Justice Department, which were themselves controversial. He told one intimate that what he saw "turned my stomach."

It was soon clear to Holder that he might have to launch an investigation to determine whether crimes were committed under the Bush administration and prosecutions warranted. The obstacles were obvious. For a new administration to reach back and investigate its predecessor is rare, if not unprecedented. After having been deeply involved in the decision to authorize Ken Starr to investigate Bill Clinton's affair with Monica Lewinsky, Holder well knew how politicized things could get. He worried about the impact on the CIA, whose operatives would be at the center of any probe. And he could clearly read the signals coming out of the White House. President Obama had already deflected the left wing of his party and human-rights organizations by saying, "We should be looking forward and not backwards" when it came to Bush-era abuses.

Still, Holder couldn't shake what he had learned in reports about the treatment of prisoners at the CIA's "black sites." If the public knew the details, he and his aides figured, there would be a groundswell of support for an independent probe. He raised with his staff the possibility of appointing a prosecutor. According to three sources familiar with the process, they discussed several potential choices and the criteria for such a sensitive investigation. Holder was looking for someone with "gravitas and grit," according to one of these sources, all of whom declined to be named. At one point, an aide joked that Holder might need to clone Patrick Fitzgerald, the hard-charging, independent-minded U.S. attorney who had prosecuted Scooter Libby in the Plamegate affair. In the end, Holder asked for a list of 10 candidates, five from within the Justice Department and five from outside.

On April 15 the attorney general traveled to West Point, where he had been invited to give a speech dedicating the military academy's new Center for the Rule of Law. As he mingled with cadets before his speech, Holder's aides furiously worked their BlackBerrys, trying to find out what was happening back in Washington. For weeks Holder had participated in a contentious internal debate over whether the Obama administration should release the Bush-era legal opinions that had authorized waterboarding and other harsh interrogation methods. He had argued to administration officials that "if you don't release the memos, you'll own the policy." CIA Director Leon Panetta, a shrewd political operator, countered that full disclosure would damage the government's ability to recruit spies and harm national security; he pushed to release only heavily redacted versions.

Holder and his aides thought they'd been losing the internal battle. What they didn't know was that, at that very moment, Obama was staging a mock debate in Emanuel's office in order to come to a final decision. In his address to the cadets, Holder cited George Washington's admonition at the Battle of Trenton, Christmas 1776, that "captive British soldiers were to be treated with humanity, regardless of how Colonial soldiers captured in battle might be treated." As Holder flew back to Washington on the FBI's Cessna Citation, Obama reached his decision. The memos would be released in full.

Holder and his team celebrated quietly, and waited for national outrage to build. But they'd miscalculated. The memos had already received such public notoriety that the new details in them did not shock many people. (Even the revelation, a few days later, that 9/11 mastermind Khalid Sheikh Mohammed and another detainee had been waterboarded hundreds of times did not drastically alter the contours of the story.) And the White House certainly did its part to head off further controversy. On the Sunday after the memos were revealed, Emanuel appeared on This Week With George Stephanopoulos and declared that there would be no prosecutions of CIA operatives who had acted in good faith with the guidance they were given. In his statement announcing the release of the memos, Obama said, "This is a time for reflection, not retribution." (Throughout, however, he has been careful to say that the final decision is the attorney general's to make.)

Emanuel and other administration officials could see that the politics of national security was turning against them. When I interviewed a senior White House official in early April, he remarked that Republicans had figured out that they could attack Obama on these issues essentially free of cost. "The genius of the Obama presidency so far has been an ability to keep social issues off the docket," he said. "But now the Republicans have found their dream…issue and they have nothing to lose."

Emanuel's response to the torture memos should not have surprised Holder. In the months since the inauguration, the relationship between the Justice Department and the White House had been marred by surprising tension and acrimony. A certain amount of friction is inherent in the relationship, even healthy. But in the Obama administration the bad blood between the camps has at times been striking. The first detonation occurred in only the third week of the administration, soon after a Justice lawyer walked into a courtroom in California and argued that a lawsuit, brought by a British detainee who was alleging torture, should have been thrown out on national-security grounds. By invoking the "state secrets" privilege, the lawyer was reaffirming a position staked out by the Bush administration. The move provoked an uproar among liberals and human-rights groups. It also infuriated Obama, who learned about it from the front page of The New York Times. "This is not the way I like to make decisions," he icily told aides, according to two administration officials, who declined to be identified discussing the president's private reactions. White House officials were livid and accused the Justice Department of sandbagging the president. Justice officials countered that they'd notified the White House counsel's office about the position they had planned to take.

Other missteps were made directly by Holder. Early on, he gave a speech on race relations in honor of Black History Month. He used the infelicitous phrase "nation of cowards" to describe the hair trigger that Americans are on when it comes to race. The quote churned through the cable conversation for a couple of news cycles and caused significant heartburn at the White House; Holder had not vetted the language with his staff. A few weeks later, he told reporters he planned to push for reinstating the ban on assault weapons, which had expired in 2004. He was simply repeating a position that Obama had taken on numerous occasions during the campaign, but at a time when the White House was desperate to win over pro-gun moderate Democrats in Congress. "It's not what we wanted to talk about," said one annoyed White House official, who declined to be identified criticizing the attorney general.

The miscues began to reinforce a narrative that Justice has had a hard time shaking. White House officials have complained that Holder and his staff are not sufficiently attuned to their political needs. Holder is well liked inside the department. His relaxed, unpretentious style—on a flight to Rome in May for a meeting of justice ministers, he popped out of his cabin with his iPod on, mimicking Bobby Darin performing "Beyond the Sea"—has bred tremendous loyalty among his personal staff. But that staff is largely made up of veteran prosecutors and lawyers whom Holder has known and worked with for years. They do not see the president's political fortunes as their primary concern. Among some White House officials there is a not-too-subtle undertone suggesting that Holder has "overlearned the lessons of Marc Rich," as one administration official said to me.

The tensions came to a head in June. By then, Congress was in full revolt over the prospect of Gitmo detainees being transferred to the United States, and the Senate had already voted to block funding to shut down Guantánamo. On the afternoon of June 3, a White House official called Holder's office to let him know that a compromise had been reached with Senate Democrats. The deal had been cut without input from Justice, according to three department officials who did not want to be identified discussing internal matters, and it imposed onerous restrictions that would make it harder to move detainees from Cuba to the United States.

Especially galling was the fact that the White House then asked Holder to go up to the Hill that evening to meet with Senate Democrats and bless the deal. Holder declined—a snub in the delicate dance of Washington politics—and in-stead dispatched the deputy attorney general in his place. Ultimately the measure passed, despite Justice's objections. Obama aides deny that they left Holder out of the loop. "There was no decision to cut them out, and they were not cut out," says one White House official. "That's a misunderstanding."

Holder is clearly not looking to have a contentious relationship with the White House. It's not his nature, and he knows it's not smart politics. His desire to get along has proved useful in his career before, and may now. Emanuel attributes any early problems to the fact that "everyone was getting their sea legs," and insists things have been patched up. "It's not like we're all sitting around singing 'Kumbaya,' " he says, but he insists that Obama got in Holder exactly what he wanted: "a strong, independent leader."

There's an obvious affinity between Holder and the man who appointed him to be the first black attorney general of the United States. They are both black men raised outside the conventional African-American tradition who worked their way to the top of the meritocracy. They are lawyers committed to translating the law into justice. Having spent most of their adult lives in the public arena, both know intimately the tug of war between principle and pragmatism. Obama, Holder says confidently, "understands the nature of what we do at the Justice Department in a way no recent president has. He's a damn good lawyer, and he understands the value of having an independent attorney general."

The next few weeks, though, could test Holder's confidence. After the prospect of torture investigations seemed to lose momentum in April, the attorney general and his aides turned to other pressing issues. They were preoccupied with Gitmo, developing a hugely complex new set of detention and prosecution policies, and putting out the daily fires that go along with running a 110,000-person department. The regular meetings Holder's team had been having on the torture question died down. Some aides began to wonder whether the idea of appointing a prosecutor was off the table.

But in late June Holder asked an aide for a copy of the CIA inspector general's thick classified report on interrogation abuses. He cleared his schedule and, over two days, holed up alone in his Justice Depart ment office, immersed himself in what Dick Cheney once referred to as "the dark side." He read the report twice, the first time as a lawyer, looking for evidence and instances of transgressions that might call for prosecution. The second time, he started to absorb what he was reading at a more emotional level. He was "shocked and saddened," he told a friend, by what government servants were alleged to have done in America's name. When he was done he stood at his window for a long time, staring at Constitution Avenue.