Holder’s Hole Card

Republican opposition to Eric Holder faded away Wednesday after the attorney general designate gave private assurances that he did not "intend" to target CIA officers who acted in "good faith" when conducting harsh interrogations of terror suspects.

But Holder's assurances, offered to GOP Sen. Christopher Bond, were carefully qualified—and left the door open for him to approve expanded Justice Department inquiries into agency interrogations once he takes office, according to White House and congressional aides who asked not to be identified talking about private meetings.

In fact, one long-running inquiry—involving the destruction of CIA tapes of the waterboarding of two detainees—could reach Holder's desk for a decision just weeks after he takes office, according to a recent legal filing by John Durham, the special counsel conducting the probe. That investigation could serve as a potential springboard for a broader probe of the circumstances surrounding the entire CIA interrogation program, said several lawyers closely familiar with the matter.

"Eric Holder has not made any commitments about who would or would not be prosecuted," an aide to Holder told NEWSWEEK. "He explained his position to Senator Bond as he did in the public hearing and in his responses to written questions."

The statement came after a brief uproar Wednesday morning following a Washington Times report that Holder had privately told Bond, the vice chairman of the Senate Intelligence Committee, that he won't prosecute intelligence officers or political appointees who were involved in the Bush administration's policy of "enhanced interrogations." The report prompted a flurry of inquiries from human-rights groups to Democratic aides on Capitol Hill demanding an explanation. "They've all been calling over this," said one Democratic aide who fielded some of the calls. One of the groups, the Center for Constitutional Rights, which represents many detainees at Guantánamo Bay, mass-e-mailed a statement decrying Holder's reported remarks as "deeply disturbing," adding that individuals responsible for the U.S. government's "torture program" had to be held "accountable."

The brouhaha was fueled by further comments from Bond's office. While somewhat more measured than the Times account, those remarks seemed to suggest that the senator was taking credit for forcing Holder to back away from previous public positions.

"Bond strongly considered blocking [Holder's] nomination based on questions arising from some of Mr. Holder's public statements," said an e-mail from a Bond aide, who asked not to be identified talking about the senator's private conversations. "After meeting with him twice over the past week, however, and having received assurances that Mr. Holder was not intent on going after intelligence officials who acted in good faith with proper authorization in the conduct of interrogations, Bond decided to support the nominee."

After weeks of GOP threats to try to derail Holder, the nominee cleared the Senate Judiciary Committee by a vote of 17 to 2 on Wednesday. (One of the "no" votes was GOP Sen. Tom Coburn, a strong supporter of gun rights who was believed to be responding to a fierce anti-Holder campaign by the hard-line Gun Owners of America. The other was Sen. John Cornyn, the chairman of the National Republican Senatorial Campaign Committee.) Senate leaders are planning a floor vote Monday. White House aides once feared that Holder might attract as many as 35 to 40 no votes from Republicans, a tally they worried might politically weaken him at Justice. But on Wednesday, one White House aide said that Holder is expected to be confirmed easily with the no votes in the "high teens."

Human-rights activists, GOP senators and U.S. intelligence officials have been preoccupied for weeks over what actions Holder might take to address controversial conduct by the Bush administration. The anxiety among some U.S. intelligence officers was ratcheted up considerably two weeks ago when Holder, in his confirmation hearing, flatly told the Senate Judiciary Committee that he viewed "waterboarding" as "torture."

Senior Bush White House officials and conservative lawyers at the Justice Department approved the CIA's use of waterboarding against three "high value" Al Qaeda suspects. All told, the CIA used various "enhanced" interrogation techniques against 33 detainees, according to an interview Vice President Dick Cheney gave to the Washington Times shortly before he left office.

"Once Holder said that [waterboarding is torture] I got nervous," said one lawyer who represents a CIA official involved in the interrogation program, who asked not to be identified talking about a legally sensitive matter. "If he says it was torture, he has to do something."

The comment also spurred follow-up questions to Holder from GOP senators. In one such exchange, Holder was asked in writing by GOP Sen. John Kyl if he believed it would be "appropriate" to investigate a government agent "and force him to incur legal fees" if that individual relied "reasonably and in good faith on Justice Department assurances that his actions are lawful."

In a response carefully vetted by Obama's White House lawyers, Holder responded that "no one is above the law. But where it is clear that a government agent has acted in 'reasonable and good-faith reliance on Justice Department legal opinions' authoritatively permitting his conduct, I would find it difficult to justify commencing a full-blown criminal investigation, let alone a prosecution."

White House aides said that Holder went no further than that in his meeting with Bond. But that leaves open the possibility of inquiries into critical questions. Among them: precisely when and under what circumstances did abusive interrogations of detainees begin? How were the Justice Department legal opinions prepared—and what went into the decisions by senior Bush administration officials to approve waterboarding as policy in the first place?

An even more relevant matter, which could well touch on all these questions: The findings of the long-running probe by Durham, the Justice Department special counsel, into the destruction of CIA tapes showing waterboarding by senior officials in the agency's Counterterrorism Center. Indeed, Holder cited that investigation in a written exchange with GOP Sen. Jeff Sessions.

That probe is important because Durham recently asserted in a legal filing that he expected to wrap up his probe "no later than Feb. 28, 2009." His legal filing argued that the Justice Department should not be forced under the Freedom of Information Act to disclose the contents of documents relating to the interrogations because it would tip off "targets and/or potential targets" to the status of his probe. The heavily redacted filing referred to the "Moussaoui phase" of his investigation—apparently a reference to allegations by defense lawyers that either Justice Department or CIA lawyers lied to a federal judge when they asserted there were no tapes of the interrogations of potential witnesses in the case against Zacarias Moussaoui, the self-confessed Al Qaeda operative arrested in the United States shortly before the September 11 attacks. (Michael Hayden, outgoing head of the CIA, said in a statement in December 2007 that the tapes were destroyed only after it was determined that they were "not relevant to any internal, legislative or judicial inquiries." But at the time Attorney General Michael Mukasey ordered the investigation and appointed Durham as his special counsel.)