Holder’s legacy: Strong on civil rights, not so much on civil liberties

By Clarence Page

Tuesday, Sept. 30, 2014 | noon

Departing Attorney General Eric Holder deserves cheers for his stance on civil rights, in my view, but bemused jeers for his assaults on civil liberties.

Holder may well be remembered ironically as a leading advocate for both human rights and for the advancement of government powers that infringe on those rights.

I have no quarrel with his aggressive pursuit of necessary civil rights reforms. He took actions to expand benefits for same-sex couples, for example, and reduce long, costly and ultimately counterproductive sentences for nonviolent drug offenders.

He took on racial disparities in criminal sentencing and voting laws. He also became a more assertive voice against alleged police abuses when President Barack Obama had to walk a more diplomatic middle ground.

Some, like me, compared him in such instances to “Luther,” Obama’s fictitious alter ego in Comedy Central’s “Key and Peele” who reveals what the president “really thinks.”

But the administration’s liberal base also hated Holder’s failure to arrest any Wall Street bankers for the fraud that triggered the economic collapse of 2008, although his Justice Department did win some record fines.

Even so, his critics on the left were mild compared to the firestorm he generated in Congress, mostly from Republicans.

His refusal to turn over some internal documents related to a botched gunrunning probe known as Fast and Furious, for example, resulted in a House vote in 2012 largely along party lines to hold him in contempt of Congress.

These are not small issues, but the debate is so often clouded by partisan rancor that where you stand can quickly become a matter of where you sit politically.

Both parties have good reasons to be upset when Obama’s Justice Department tilts, as Benjamin Franklin might put it, too far away from liberty in their pursuit of safety.

Most controversially, Holder defended the FBI’s right to track people’s cars without warrants. He approved of the National Security Agency’s authority to sweep up millions of phone records of Americans accused of no crime.

Holder’s department also wrote a legal justification for killing American citizens overseas if it was determined they posed a threat to U.S. lives and couldn’t be apprehended through traditional means.

Each of these issues calls for serious debate, which too often is lacking on Capitol Hill. As much as lawmakers in both parties complain about a growing imperial presidency, depending on which party is sitting in the White House, Congress has not been eager to make those tough decisions, either.

I’m losing count, for example, of all the wars we have fought since World War II, the last time Congress actually voted formally to declare war, as called for in the Constitution.

Congress having avoided a formal declaration of war for so long, too many lawmakers would rather duck, dodge and delay making tough decisions — and complain about whatever the White House does later.

With that in mind, I am dismayed but not shocked that what many journalists and civil libertarians see as a war on the press started in Holder’s office.

He has subpoenaed journalists, their emails and their phone records in a crackdown on their sources. He has started more investigations than any of his predecessors into government officials who disclosed information to reporters.

The New York Times reporter James Risen, who has refused to reveal his sources about information on Iran, remains under subpoena.

For actions like these, as I have written, attorney James Goodale, who argued for the Times in the historic Pentagon Papers case against the Nixon administration before the Supreme Court, described Obama as “rapidly becoming the worst ... president ever” for respecting press freedom on national security matters.

Holder acknowledged in a New York Times exit interview after announcing his resignation that those efforts went too far at times. He praised his office’s new rules to limit investigations involving journalists.

As one who participated as a representative of the New York-based Committee to Protect Journalists in one of his early meetings, I praise those rules as a good beginning to a necessary debate about freedoms in the age of counterterrorism.

Team Obama’s concerns about keeping America safe are laudable, but always must be balanced by the need to keep Americans free.

Clarence Page is a columnist for the Chicago Tribune.