Security: The Underwear Bomber And The Attorney General

Holder, despite the controversy he has inspired, has not actually pushed for radical change. Indeed, critics in left-leaning legal circles have complained that he has kept too many of George W. Bush's counterterrorism policies in place. For example, Holder's Justice Department has continued blocking lawsuits by people who were subjected to extraordinary rendition--the practice of sending suspected terrorists captured abroad to countries known for administering torture--on the ground that such litigation would expose state secrets. Even some former members of the Bush Administration see more continuity than change. Bradford Berenson, who served as a White House lawyer when the Bush Administration was forging its controversial legal approach to terrorism, told me that from the perspective of a hawkish Bush national-security person the glass is eighty-five per cent full in terms of continuity.

For all the tough rhetoric of the Bush Administration, it prosecuted many more terror suspects as criminals than as enemy combatants. According to statistics compiled by New York University's Center on Law and Security, since 2001 the criminal courts have convicted some hundred and fifty suspects on terrorism charges. Only three detainees--all of whom were apprehended abroad--were convicted in military commissions at Guantánamo.

See The Trial: Eric Holder and the battle over Khalid Sheikh Mohammed by Jane Mayer, February 15, 2010.