It does seem to be a fair concern why Mr. Holder, who works for a president promising the most transparent administration in history, would stonewall the Senate and even now fail to provide a complete response on who in his department represented detainees and their current responsibilities. Those who questioned his response, however, prompted quite a sideshow as several prominent lawyers came forward to defend the obligation of an attorney to represent unpopular causes. This neatly sidesteps the real question, which is not whether these lawyers acted properly before they came to Justice, but rather, why Mr. Holder chose to hire so many of them and what they are doing now. Believe me, had the Securities and Exchange Commission hired a suite of Fortune 100 general counsels to enforce securities laws or the Environmental Protection Agency a table full of lawyers from oil companies, such questions would be asked.
Other hard questions Mr. Holder should have to answer include why he feels a lawyer with no prosecutorial experience - who as a human rights advocate referred to military commissions as "kangaroo courts" and said freeing terrorists is a legal "assumption of risk" we must be prepared to take - is qualified to represent the department on detainee matters. Or, for that matter, what Mr. Holder's hiring of these nine lawyers or his signing of Padilla's brief might tell us about his own view of detainee rights. After all, because some of those briefs were not produced for his confirmation, that was a conversation the senators did not have with him when it counted.
There are two schools of thought about the legal war on terror. One essentially starts from the premise that terrorist suspects, enemy combatants and detainees should not be tried as "criminals" and are not entitled to the full panoply of constitutional rights afforded to U.S. citizens. Instead, they should be tried in military tribunals, with more limited rights. A very different view, held by many human rights advocates, is that terrorist suspects should be treated as one of our own citizens, even at the risk of returning enemy combatants to the field to attack again.
The U.S. Senate, and the American people, have every right to know who is setting policy for the legal war on terror and in which of these directions they are headed. Mr. Holder would do well to bring less foot-dragging and more forthright answers to these legitimate questions when he comes before the Judiciary Committee next week.