January 15, 2009
On the New York Times Op-Ed page, “Questions of Justice,” HLS Professors Jack Goldsmith and Noah Feldman offer some questions that should be asked in the confirmation hearings of Eric Holder, President-elect Barack Obama’s nominee for U.S. attorney general. The piece appears in the January 14, 2009, edition of the Times.
Eric Holder, President-elect Barack Obama’s nominee for attorney general, is scheduled to appear today at a confirmation hearing before the Senate Judiciary Committee. The Op-Ed page asked five legal experts to pose the questions they would like to hear the nominee answer.
1. Do you believe the president has authorities under the Constitution’s executive power and commander in chief clauses on which Congress cannot impinge? What are they?
2. Will you give legal approval to covert counterterrorism actions that you believe are lawful but which you know will engender legal and political controversy if made public? What factors other than your best legal judgment will you consider? 3. Attorney General Michael Mukasey has suggested that the threat of criminal investigations is impairing the ability of the intelligence community to make good-faith decisions about how best to protect the country. How much does this worry you and what, if anything, will you do about it?
- JACK L. GOLDSMITH, a Harvard law professor, the author of “The Terror Presidency,” and an assistant attorney general from 2003 to 2004
1. What will you do when liberals, over Mr. Obama’s objections, encourage Congress, the courts and the Justice Department to pursue investigations and prosecutions concerning the Bush administration’s surveillance and interrogation policies?
2. Will your representation of Chiquita and other corporations accused of wrongdoing make you less enthusiastic about prosecuting the corporate architects of the financial meltdown?
3. You’ve said that, in hindsight, you wish you had ensured that the Department of Justice was more fully informed and involved in President Bill Clinton’s decision to pardon Marc Rich. Do you now think that the pardon was wrong? Or do you think you’ve been unfairly attacked for helping Mr. Rich, Puerto Rican nationalists and some of your corporate clients?
4. Do you agree with Mr. Obama’s implication that the Supreme Court needs someone who will side with the powerless rather than the powerful? What if the best nominee happens to be a white male?
— JEFFREY ROSEN, a law professor at George Washington University and the legal affairs editor of The New Republic
1. Given that government interrogators believed they were acting under color of law when they used waterboarding and other harsh techniques when dealing with terrorism suspects, is it appropriate to consider charging them with crimes?
2. Does the president have the power to detain terrorism suspects without trial in the United States? If so, for how long?
3. Some prisoners at Guantánamo Bay have been determined by the government to not be dangerous, but other countries are reluctant to take them. Should they be made American residents?
4. What do we owe foreigners convicted in American courts after violation of their rights under international treaties?
— NOAH FELDMAN, a Harvard law professor and fellow at the Council on Foreign Relations
1. What may American military and law enforcement do to extract information from terrorists, especially in a “ticking time-bomb” case?
2. Do you believe law-abiding Americans have an individual constitutional right to keep firearms for self-defense?
3. Some say the war on drugs causes more violence than it prevents. An attorney general must exercise prosecutorial discretion about which laws the Justice Department should focus on enforcing. What do you think is the best way to decrease violence related to drugs and the war on drugs?
— EUGENE VOLOKH, a professor of law at the University of California, Los Angeles, and the founder of the Volokh Conspiracy blog
1. Mr. Obama has said that he wants to build American capacity and partnerships to capture or kill terrorists around the world. What role, if any, do you see for traditional military detention for future prisoners and for some of the detainees held at Guantánamo?
2. If there is a decision to try some detainees in traditional courts-martial, do you think any of the military rules of evidence or rules for courts-martial would need to be modified under the doctrine of impracticability? If so, which ones?
— CHARLES STIMSON, the deputy assistant secretary of defense for detainee affairs from 2006 to 2007 and a senior legal fellow at the Heritage Foundation