A Champion of Civil Rights, if Not of Civil Liberties, Just Like His Hero
By Matt Apuzzo
WASHINGTON — Something was not quite right when Attorney General Eric H. Holder Jr. had his photograph taken recently at Department of Justice headquarters. The wrong painting was on the wall behind him.
Aides scurried to reorganize the portraits so subsequent photographs would capture Mr. Holder, in the best light, framed by his hero: Attorney General Robert F. Kennedy.
Mr. Holder, who announced his resignation Thursday, frequently invoked the Kennedy legacy as he made civil rights the centerpiece of his six-year tenure. He succeeded in reducing lengthy prison sentences, opened civil rights investigations against police departments in record numbers and challenged identification requirements for voters.
“I have loved the Department of Justice ever since, as a young boy, I watched Robert Kennedy prove during the civil rights movement how the department can — and must always — be a force for that which is right,” Mr. Holder said at a White House farewell on Thursday.
But Mr. Holder has continued Mr. Kennedy’s work in another way, one he is less likely to embrace but is no less part of his legacy. Like Mr. Kennedy, Mr. Holder has frustrated and confounded even his staunchest allies for his views on civil liberties.
Mr. Holder approved of the National Security Agency’s authority to sweep up millions of phone records of Americans accused of no crime. He subpoenaed journalists and led a crackdown on their sources. He defended the F.B.I.’s right to track people’s cars without warrants and the president’s right to kill an American who had joined Al Qaeda.
“This is an attorney general who displayed an odd approach, an odd schism between civil rights and civil liberties,” said Elizabeth Goitein, a lawyer with the Brennan Center for Justice, a group that frequently supported Mr. Holder’s civil rights policies.
A child of the civil rights era, Mr. Holder, 63, was shaped by images of violence in Selma, Ala. He relished his place in history as the nation’s first African-American attorney general and used that to engage in discussions of race and inequality, even when President Obama was reluctant to do so.
A native of New York City, Mr. Holder spoke about being stopped without cause by the police and, after the recent shooting of an unarmed black teenager by a white police officer in Ferguson, Mo., Mr. Holder sought to go there as the administration’s emissary.
But those who cheered him one day were bewildered the next as Mr. Holder, the most prominent liberal voice in the Obama administration, took positions giving the government wide authority to keep tabs on Americans.
It happened so often, it prompted a game of amateur psychology among civil liberties groups: Was Mr. Holder, at heart, unsympathetic to issues of privacy and government overreach? Was he overrun by other national security officials? Or had he been persuaded that keeping America safe required taking positions he might otherwise have opposed?
“At the end of the day, does it matter?” Ms. Goitein said. “If civil liberties were on his mind, and we didn’t see it, well, that and $2 will get you a cup of coffee.”
Anthony Romero, executive director of the American Civil Liberties Union, praised Mr. Holder’s tenure but acknowledged being frequently frustrated.
“You build your legacy when you can, and you cut your losses when you can’t,” Mr. Romero said. “The attorney general cut his losses on civil liberties when it comes to national security.”
No attorney general is without critics, and each leaves a complicated legacy. Mr. Holder has faced criticism for not prosecuting the major figures in the financial collapse. Republicans grilled Mr. Holder and his aides over the flawed Fast and Furious gun trafficking investigation, which led to a vote holding Mr. Holder in contempt of Congress.
But Mr. Holder’s tenure is unique in that his biggest supporters are also among his loudest critics. Groups like the A.C.L.U. cheered his call to eliminate mandatory minimum sentences for minor drug crimes and his push for prisoner clemency. They applauded when Mr. Holder, like no attorney general before him, cast the drug war in civil rights terms. He spoke of broken families and a cycle of prison and poverty.
Those same groups have sued Mr. Holder over government surveillance. They demanded documents — and were rebuffed — detailing the department’s policies for tracking cars using hidden transmitters. They fought to release the legal opinions authorizing the attack that killed Anwar al-Awlaki, an American who joined Al Qaeda.
Under Mr. Holder, the government accepted the theory that records that might someday be relevant to a terrorism investigation were immediately relevant — and could be seized. That analysis underpinned the N.S.A.’s collection of phone records.
“If you were to ask, ‘What would Bobby Kennedy do if he were sitting in Eric Holder’s chair?’ You might not find many differences, on all these issues,” said Thomas J. Perelli, a lawyer who served as Mr. Holder’s associate attorney general.
Though Mr. Kennedy presided in a different era with different laws, he similarly used wide surveillance authority to target Communists and other threats. He authorized wiretaps of civil rights leaders including the Rev. Dr. Martin Luther King Jr.
“Bobby was certainly not shy about using wiretapping and used it as much as any attorney general,” said Evan Thomas, a journalist and Kennedy biographer. “Holder is following in Bobby’s footsteps in that sense.”
In a brief interview Thursday, Mr. Holder said he saw no contradiction in his views.
“I have national security responsibilities that obviously I have to take seriously, but I perform that national security responsibility in a way that is consistent with how I view these other civil rights issues,” he said. “There is a consistency there that, if they examine it closely, I think they can find.”
Asked about the N.S.A.’s authority to seize phone records, Mr. Holder said he supports proposals to limit that authority. But he declined to say why he accepted it in the first place.
Those who worked closest with him say Mr. Holder is easygoing and eager to be liked. But it was the reality of the office, they say, that underpinned his opinions.
“You see the intelligence every day. You see the threats come in, you see the plots getting thwarted, and you become a believer,” said Amy Jeffress, a lawyer at Arnold & Porter and a former counselor to Mr. Holder on national security. “That makes it harder to throw out entire programs because they’ll be unpopular with civil liberties groups.”
Mr. Holder’s Justice Department started more investigations than any of his predecessors into government officials who disclosed information to reporters. He subpoenaed journalists’ emails and phone records, and demanded their testimony. The New York Times reporter James Risen, who has refused to reveal his sources about information on Iran, remains under subpoena.
Mr. Holder acknowledged in the interview that those efforts went too far at times and pointed to new rules limiting investigations involving journalists.
Mr. Holder said the changes he helped enact in the criminal justice system were his proudest accomplishment. “We turned this aircraft carrier around after years of overreliance on incarceration,” he said.
Sherrilyn Ifill, the president of the NAACP Legal Defense and Educational Fund, said that in that area, Mr. Holder’s legacy was secure. “On the issue of civil rights, he has been the most engaged and extraordinary attorney general,” she said.
Michael D. Shear and Charlie Savage contributed reporting.