AG Holder and the Inevitability of Politicization

Consider the juxtaposition of two recent profiles of AG Eric Holder. Writing in the current New Yorker, Jane Mayer describes how Holder "has tried to depoliticize" decisions about such matters as how and where to try terrorism suspects. Although she notes that Holder is not politically naive, she does portray a struggle between Holder's view and the political shop in the White House (read Rahm Emanuel). Meanwhile, an article in yesterday's NY Times may suggest the exact opposite by its title--"After 9/11 Trial Plan, Holder Hones Political Ear." However, the substance of the Times article conveys much the same picture as Mayer's portrait in The New Yorker: despite his extensive political experience, Holder is temperamentally disdainful of politics. In the wake of the Obama Administration decision not to try KSM in NYC, Holder is trying to be more pro-active politically, but it hardly comes naturally.

Here I'll express skepticism about the possibility of maintaining an apolitical approach once one has been criticized on political grounds. Holder (backed by Obama
for now but perhaps not for long) appears genuinely annoyed and surprised by the fact that various Republicans are criticizing his preference for civilian trials of terrorist suspects when many of those very same Republicans supported the Bush Administration's similar actions. Notwithstanding the attention to Gitmo and military tribunals, under Bush many more people were tried and convicted in civilian court than before military tribunals, and most of the former were read their Miranda rights. This comparison (made in the Mayer article) is not entirely fair, of course, because most of the Gitmo detainees didn't get any trial at all. Still, as Mayer notes, the civilian courts have tended to give harsher penalties for terrorism convictions than the military commissions have. And so Holder concludes that his critics are simply grandstanding when they accuse him and Obama of "not realizing we're at war."

Holder is right about that, obviously. But once the political point has been made, it's virtually impossible for Holder to defend what he's doing as apolitical. Sure, Rudy Giuliani et al are saying things now that are inconsistent with what they said during the Bush years, but once the right advances the war-means-use-military-commissions-rather-than-civilian-courts-and-waterboarding-rather-than-Miranda-warnings meme, Holder's the-choice-between-security-and-our-values-is-a-false-choice response will inevitably be viewed as the other side of a political argument.

How do I know? Because this pattern was set in the earliest days of the Republic. Even before the Washington Administration came to an end, the people who came to be known as Federalists--especially John Adams and Alexander Hamilton--viewed the emerging Democratic-Republican Party of Thomas Jefferson as inappropriately partisan. The Federalists thought that Jefferson was betraying the constitutional ideal, expressed by James Madison in his Federalist days, under which "faction" was a vice, not a virtue. It must have been especially infuriating for the Federalists to see Madison among the leaders of the D-R's.

The Federalist response was to try to portray the D-R's as a faction that was fomenting division. But it didn't work, or rather, if it did, the Federalists were perceived as just as much of a faction. Was that fair? It's very hard to answer that question without some reference to the underlying merits of the issues that divided Federalists and D-R's. With what we now regard as extreme states' rights views (as per the Virginia and Kentucky Resolutions), not to mention disproportionate support among slaveowners and their allies, it's hard to see the D-R program in an especially sympathetic light. But neither do the Federalists look so wonderful in retrospect. They were shockingly (and openly) elitist by modern standards, and no friends of civil liberties (as per the Alien and Sedition Acts). Hence, seen from the distance over two centuries, it's easy to understand the political fight between Adams and Jefferson as essentially a bare-knuckles but sincere disagreement over the best direction for the country (as each eventually came to think in retirement).

So, can we expect that two hundred years from now, historians and legal scholars will view Dick Cheney and Eric Holder as protagonists in a tough-but-honest debate over how best to protect national security? We'll have to wait and see.