Attorney General Eric Holder, who has announced that he will step down, wants to be remembered for his record on civil rights. He will be—but not in the way that he means. From the standpoint of civil rights, historians will regard him as a failure.
When Holder talks about his record on civil rights, he means the efforts that he made on behalf of gays and lesbians and of racial minorities. Holder refused to allow the Justice Department to defend the Defense of Marriage Act—a law that defined marriage to exclude same-sex marriage for federal purposes—and his judgment was vindicated by the Supreme Court, which struck down the relevant section of the act. He has also tried to protect minority voters from state voting restrictions, and launched investigations of civil rights violations by police departments. These efforts were not wasted, but they were incremental. Most of the gains in these areas in recent years have come from private litigants, state legislatures, and courts.
More significant, Holder’s Justice Department has helped suppress civil liberties that interfere with what the Bush administration called the “war on terror,” the currently nameless global operation to confront Islamic terrorism wherever it appears. The bill of particulars is lengthy.
War, not law: Holder supported the much-criticized Bush-era claim that the president can use war powers against al-Qaida. Civil libertarians had argued that al-Qaida was a criminal organization, like the Mafia, and so the full panoply of criminal-law rights applied to suspected al-Qaida members. By contrast, the invocation of war powers means that suspected al-Qaida members enjoy no (or limited) rights to a fair trial, no protection from surveillance, and limited protection from interrogation. And they could (unlike an ordinary criminal) be killed on sight, as many have.
Guantánamo Bay: While President Obama wants to shut Guantánamo Bay, it remains open. The United States continues to detain more than 100 people who have not been tried, and who have been denied basic procedural protections. Holder tried to do his part to persuade Americans that al-Qaida suspects could be tried in a regular criminal court by announcing that several detainees thought to have planned the 9/11 attack would be tried in federal court. In the ensuing brouhaha, Holder backed down and agreed that they should be tried by military commissions.
Assassinations: Holder has provided legal support for the U.S. policy of assassinating suspected members of al-Qaida without providing them with a trial, and indeed without any evidence that they were in the process of launching a terrorist attack. By defining the word imminent in the broadest possible way, he ensured that assassinations could be carried out against anyone who the U.S. government believed was a member of al-Qaida if the person was located on foreign soil and could not be captured.
Torture: Holder repudiated the Bush administration’s policy of torturing members of al-Qaida, and the Obama administration does not conduct torture. But he is complicit in Obama’s decision not to prosecute CIA agents who tortured detainees in violation of U.S. law.
Secrecy: The Justice Department under Holder has enthusiastically defended the state secrets privilege, which allows the U.S. government to exclude from lawsuits evidence that (according to government officials) endangers national security. This privilege has defeated efforts to hold the government to account for war-on-terror abuses. Moreover, like Bush’s Justice Department, Obama’s Justice Department under Holder tries to keep secret legal opinions that justify controversial presidential actions.
The press: The Justice Department has vigorously tried to force journalists to divulge the identity of confidential sources in criminal trails, arguing successfully to courts that journalists do not enjoy a “reporter’s privilege” under the First Amendment. Despite outcries from the press, the Justice Department has engaged in surveillance of the reporters, and tried to compel New York Times reporter James Risen to reveal his source in a trial of a CIA agent accused of leaking secrets.
Surveillance and privacy: The Justice Department has been largely passive in debates about the extent to which the government may use modern surveillance technologies to spy on Americans. In the 2012 Supreme Court case U.S. v. Jones, for example, the Justice Department argued that the police did not violate the Fourth Amendment by attaching a GPS device to a car that they were tailing. All nine justices rejected the government’s position.
War, again: President Obama has claimed vast power to initiate wars without congressional consent—including the 2011 war in Libya and the current war in Iraq and Syria. The Justice Department has not always been directly involved in the legal justifications for these wars, but it either abetted the president or stood aside.
This is not a record that a civil-rights-promoting attorney general can be proud of. But two things can be said in Holder’s defense. First, the attorney general just doesn’t have much power to compel a president to comply with civil rights. The attorney general is merely the president’s legal adviser; he doesn’t have any authority to force the president to obey the law. In principle, Holder could have resigned in protest of these civil rights violations, but he surely thought that he could do more for civil rights by staying in office and picking his battles, and rightly so.
Second, while Holder’s decisions disappointed civil libertarians of all stripes, they were not obviously wrong. Indeed, they were mostly right. “In times of war, the law falls silent,” said Cicero. This is something of an exaggeration in the United States today, but it remains true that the rights of people considered a threat to a country tend to diminish as the magnitude of that threat increases, for good reason. Holder, like his Bush administration predecessors Alberto Gonzales* and John Ashcroft, adopted a pragmatic rather than rigidly legalistic position on civil rights, human rights, and the laws of war. That pragmatism will be his legacy.
*Correction, Sept. 25, 2014: This article originally misspelled Alberto Gonzales' surname.