In NY Times op-ed, Finder finds contradiction in consistent statements to assert Holder flip-flopped

Written by Jeremy Holden

Published

Editor's Note: After this item was posted on August 30, we received an email from Joseph Finder, the author of the op-ed, taking issue with the item. Mr. Finder contends that we were wrong in asserting that Mr. Holder's statements in 2002 and 2008 were consistent. After review, we agree with Mr. Finder that we went too far in asserting that the two statements were consistent; the facts do not establish that. However, our criticism of the omission of a key part of Mr. Holder's 2002 comments remains valid. Mr. Finder omitted the part of Mr. Holder's 2002 comments in which Holder made clear that he shared then-Secretary of State Powell's position that, in Mr. Holder's words: "[T]hese are not people who are prisoners of war as that has been defined, but who are entitled to, in our own interests, entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention." By leaving out that statement, Mr. Finder denied his readers information that was relevant to an assessment of Mr. Holder's views on detainee treatment, then and now.

The New York Times published an op-ed by Joseph Finder, who contrasted statements Attorney General Eric Holder made in 2002 and in 2008 to suggest that after originally stating that the United States government should not extend rights consistent with the Geneva Convention to detainees held at Guantánamo Bay, Holder subsequently flip-flopped. But Holder's comments are completely consistent; Finder suggests otherwise by reporting Holder's 2002 statement that detainees were “not, in fact, people entitled to the protection of the Geneva Convention,” but ignoring his statement later in the same interview that they are nonetheless “entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention.”

From Finder's August 30 Times op-ed:

Early in 2002, Eric Holder, then a former deputy attorney general, said on CNN that the detainees being held at Guantánamo Bay were “not, in fact, people entitled to the protection of the Geneva Convention,” particularly “given the way in which they have conducted themselves.”

Six years later, declaring that “Guantánamo Bay is an international embarrassment,” Mr. Holder said, “I never thought I would see the day when ... the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention.”

So what changed?

A lot of things, of course, but most of all, our national political climate. Reeling from the attacks of Sept. 11, 2001, many on the front lines of the war against terrorism felt a sense of fear and urgency that, years later, it's hard for some to recall. Now, the attacks receding into the past, a lot of us see things in a different light.

Certainly Mr. Holder, now the attorney general, does.

Finder falsely suggests that in 2002, Holder opposed treating detainees consistent with Geneva Convention

Finder: In 2002 Holder said detainees being held at Guantánamo Bay were “not, in fact, people entitled to the protection of the Geneva Convention.” In his New York Times op-ed, Finder asserted, “Early in 2002, Eric Holder, then a former deputy attorney general, said on CNN that the detainees being held at Guantánamo Bay were 'not, in fact, people entitled to the protection of the Geneva Convention,' particularly 'given the way in which they have conducted themselves.'” [New York Times, 8/30/09]

Holder in same interview: detainees “entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention.” In a 2002 interview with Paula Zahn, Holder stated of the detainees, “It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.” But after Zahn subsequently stated, “So is the secretary of state walking a fine line here legally? He is not asking that the United States declare these men as prisoners of war right now. He's just saying let's abide by the Geneva Convention in the meantime,” and “help us understand how you reconcile this,” Holder responded:

HOLDER: Well, I think you've got people on the one hand saying that these are folks who should not be treated pursuant to the Geneva Convention, and at the same time, you're going to have people saying, “Well, you know, what does that mean for our forces down the road? What does that mean for people who are going to be doing what we tell them to do throughout the course of this conflict, which is worldwide and which is going to be taking years to ultimately resolve?”

I can understand the tensions that exist, but I think the way to resolve it is, in fact, the way [then-] Secretary [of State Colin] Powell has proposed, which is to say these are not people who are prisoners of war as that has been defined, but who are entitled to, in our own interests, entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention. [CNN's American Morning, 1/28/02]

Finder falsely contrasts Holder's 2002 statement with Holder's 2008 criticism of the Bush administration

Finder: In 2008, Holder criticized that “the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention.” Finder wrote in his Times op-ed that in 2008, “declaring that 'Guantánamo Bay is an international embarrassment,' Mr. Holder said, 'I never thought I would see the day when ... the Supreme Court would have to order the president of the United States to treat detainees in accordance with the Geneva Convention.' ” Finder continued, “So what changed?” suggesting that Holder's position on treating detainees in accordance with the Geneva Convention had been inconsistent. [New York Times, 8/30/09]

Holder's call to “treat detainees in accordance with the Geneva Convention” is consistent with his 2002 comments. In suggesting that Holder's position on treatment of detainees had changed, Finder ignores Holder's statement in 2002 supporting the position that the detainees “are not people who are prisoners of war as that has been defined, but who are entitled to, in our own interests, entitled to be treated in a very humane way and almost consistent with all of the dictates of the Geneva Convention.”