Dec. 28, 2008 The Hartford Courant
Clinton-Era Sentence Reductions Could Trip Holder's Confirmation
Early this month, President-elect Barack Obama's nominee for attorney general, Eric H. Holder Jr., looked as if he were on his way to painless confirmation, backed by public _expressions of support from Democrats and Republicans in the U.S. Senate.
But questions about Holder's appointment have been building over his role as a former deputy attorney general in a number of controversial Clinton-era legal decisions. High on the list are the dramatic sentence reductions he recommended in 1999 for members of two groups responsible for a years-long terror campaign aimed at Puerto Rican independence.
Four of those who received presidential clemency, members of the group Los Macheteros, were convicted of involvement in the $7.2 million armed robbery of a Wells Fargo office in
West Hartford in 1983. About half the stolen money wound up with the Cuban government, which had helped train and finance the robbers.
One Machetero, Juan Enrique Segarra-Palmer, had his 55-year sentence cut by about half and the three others had fines of either $100,000 or $50,000 forgiven. None of the four was pressed by the Justice Department to provide information on the whereabouts of the never-recovered money or three fugitive participants in the robbery, including
Hartford native and inside man Victor M. Gerena. Such pressure is a common precondition for clemency.
A total of 16 radical Independentistas, either Macheteros or members of the affiliated Armed Forces of National Liberation, ultimately won sentence reductions or remissions of fines — although none of them had applied personally for clemency.
Together, the groups are linked to 130 bombings, several murders and as many as a dozen robberies. When President Bill Clinton issued the clemency, the FBI said the two groups were the driving force behind the violent wing of the Puerto Rican independence movement and represented one of the nation's foremost domestic terror threats.
As the No. 2 man in the
Clinton administration Justice Department from 1997 to 2001, Holder directed the federal Office of the Pardon Attorney, which is responsible for investigating and issuing recommendations on executive clemency applications.
As a result, he had a decisive role in controversial Clinton-era pardons, including that of billionaire Mark Rich, a fugitive tax cheat whose case has dominated discussion of Holder's nomination and is expected to be topic No. 1 at the confirmation hearings.
But Senate staffers said the
Puerto Rico clemency is expected to be the subject of considerable questioning. A senior Justice official, while generally supportive of Holder, called the lesser-known
Puerto Rico commutations "far more egregious" because they involved terror and appear to have deviated widely from federal regulations and past practices in clemency matters.
Interviews and a review of congressional records show that Holder's recommendation for clemency was at odds with a report by the Office of the Pardon Attorney. The pardon attorney issued a second report to Holder about two years later that took no position on clemency. Critics say the second report violated rules requiring the pardons attorney to recommend either for or against clemency.
Groups unequivocally opposed to the Puerto Rico clemency — the FBI, Federal Bureau of Prisons, bombing victims and the
U.S. attorney's offices in
New Haven and
Chicago — were either not consulted or ignored. But the records show that Holder and other top Justice and White House officials met at least nine times with advocates for the prisoners. Notes of those meetings led congressional critics to complain that the officials advised the prisoner advocates how to craft correspondence to support the case for clemency.
Holder, a 57-year old former prosecutor and judge, is highly regarded in the Justice Department, and his Dec. 1 nomination was widely praised. He could not be reached for comment.
Senate Judiciary Committee Chairman Patrick J. Leahy, D-Vt., although critical of the Puerto Rico clemency when it was issued, called Holder uniquely qualified to end the political meddling he said occurred in the Justice Department under former Bush administration Attorney General Alberto Gonzales.
But in a sign that Holder's fortunes may be changing, Pennsylvania Sen. Arlen Specter, the committee's ranking Republican, questioned Holder's role in clemency matters 10 days later, on Dec. 11. Specter seemed to imply in a floor speech that Holder may be no more immune than Gonzales to political meddling. Specter said he met with Holder before the speech.
"I don't think it is useful to get into the specifics as to the precise concerns which I raised and his precise answers," Specter said. "But by analogy to the Gonzales tenure, I think it is imperative we be sure the attorney general of the
United States does not bend his views to accommodate his appointer; that the attorney general does not bend his views in any way which is partisan or political, to serve any interest other than the interests of justice."
Specter and seven other Senate Republicans have delayed Holder's confirmation hearing a week, to Jan. 15, to make more time for preparation. They asked the Justice Department and
Clinton presidential library for records concerning a variety of Clinton-era legal controversies — including all documents reflecting Holder's involvement in the
Puerto Rico clemencies.
The clemency was widely condemned when
Clinton quietly announced it, late on a Wednesday during a congressional recess. Law enforcement officials said it undercut the war on terror. Republicans, armed with internal White House e-mail, called it a ploy to swing mainland Puerto Ricans to Democratic candidates in the 2000 elections — in particular to Hillary Clinton's New York Senate campaign.
Before her husband's clemency decision, Hillary Clinton met privately with New York City Puerto Rican leaders, who acknowledge pressing her on what they called the "political prisoner" issue. But the
Clintons deny any link between the clemency and the Senate race. A former
Clinton administration official close to both said he does not believe Hillary Clinton learned of the clemency until after it was publicly announced.
Two congressional committees opened inquiries, but were hindered by President Clinton's assertion that clemency deliberations are the subject of executive privilege and should remain secret. The administration refused to produce documents or permit officials to testify, saying disclosures could chill future clemency discussions.
Holder was called to testify before the Senate Judiciary Committee in October 1999. He conceded that bombing victims were not consulted about clemency, but for the most part Holder declined to answer substantive questions, including why the Office of the Pardon Attorney issued two inconsistent reports and why those getting sentence commutations were never pressed to provide information about fugitive co-defendants.
Orrin G. Hatch, R- Utah, then chairman of the judiciary committee, said a "generally recognized criterion" for awarding clemency is the degree to which prisoners cooperate with authorities. He then peppered Holder with questions about why more was not done to locate Gerena.
"You're a former prosecutor," Hatch told Holder. "I mean, don't you want to get to the bottom of these things?"
"Sure," Holder replied.
"Well, then, why weren't the questions asked?"
Holder said it probably would have been futile to ask for help from people who didn't recognize the right of the government to prosecute them. In any event, he said, the decision was
Clinton's as to whether the prisoners cooperated or not.
"Well, as I said, the power of the president is absolute in these areas and can take into consideration a variety of things," Holder said.
Despite the lack of complete cooperation, the committees — Judiciary and the House Committee on Government Reform — compiled a record that lays out how the clemency process worked.
The Office of the Pardon Attorney took up the subject after receiving an application on Nov. 9, 1993, from Dr. Luis Nieves Falcon, a leading Puerto Rico Independentista acting in behalf of a group called Offensive '92. The application was accepted, even though federal regulations require those seeking clemency to file formal, personal petitions.
Nieves said in the application that the Independentistas would not file personal petitions because they were "political prisoners." To do so, he wrote, would have placed the prisoners in the untenable position of acknowledging the legitimacy of the
U.S. government, which they contended illegally convicted them for participating in a justifiable struggle for independence.
Records compiled by Congress show that once the petition was accepted, then-Pardons Attorney Margaret C. Love reviewed the application in accordance with federal regulations and past Justice Department practice.
She declined to have substantive conversations with advocates for the prisoners about the merits of the petition, progress on it or its likelihood of success. She said such conversations are improper, according to congressional records. And, according to records and interviews with participants, she consulted interested law enforcement agencies and federal prosecutors in
New Haven and
Chicago, both of which opposed clemency.
The
U.S. attorney's office in
New Haven outlined its opposition in a letter. The office will not make the letter public, but officials involved in its preparation have confirmed its substance.
The federal prosecution arising from the Wells Fargo robbery is one of the longest and most complex ever undertaken by the office. Three men indicted in the robbery — Filiberto Ojeda Rios, Avelino Gonzalez Claudia and Gerena — remained at large at the time of the clemency applications.
Ojeda was shot to death after seriously wounding an agent during a gunfight with the FBI in
Puerto Rico in 2005. Gonzalez was apprehended in Puerto Rico in February 2008 and is imprisoned while awaiting trial in
Hartford. Gerena is believed to be hiding in
Cuba, along with bomb maker Guillermo Morales, a member of the Armed Forces of National Liberation, commonly known by the Spanish acronym FALN.
Congressional records show that, by late 1996, Love had recommended against clemency. Her recommendation was forwarded, through the deputy attorney general's office, to the White House.
For reasons that Holder and the
Clinton administration declined to share with Congress, the clemency process for the Puerto Rican prisoners continued despite the negative recommendation.
During the Senate hearing on clemency, Hatch called the continuation of the process "another unusual departure from the standard case" and attributed it to a "vigorous lobbying and public relations campaign by various political and religious groups."
A Justice Department document acquired by Congress shows that the department continued to get inquiries about the
Puerto Rico clemency throughout 1997 from White House staffers and advocates for the prisoners — even though the clemency petition had been rejected by the pardon attorney.
During a November 1997 meeting with Holder, three Puerto Rican members of the House of Representatives, all clemency advocates, asked him to arrange for the release of the prisoners while the congressmen were still in office.
Holder, according to the document, said the prisoners' failure to apply personally for clemency suggested they were unrepentant.Rep. Luis Gutierrez, D-Ill., said the prisoners would write a letter addressing the subject. When Holder asked how the prisoners had changed since their convictions, Gutierrez said they would reflect and respond in writing.
Critics say that such conversations amounted to advice on preparing a record for clemency.
By April 1998, Roger Adams had replaced Love as pardons attorney and he and Holder met again with advocates for the prisoners. Holder asked whether the prisoners would renounce violence if offered clemency.
Clinton's offer ultimately was conditioned on a renunciation of violence. Those who accepted the offer agreed and completed what congressional investigators said was an after-the-fact petition for clemency.
Adams, who apparently did not share his predecessor's beliefs about discussing the timing of petitions, told the advocates that his office was preparing a report for Holder, that its completion had been delayed until after the meeting and that "it would likely be done fairly quickly."
The advocates also produced the letter promised earlier that explained how the prisoners had changed since their convictions. It was titled "Statement from the Puerto Rican Political Prisoners."
Among other things, the letter said the prisoners were forced into violent acts because the
U.S. government did not allow for "other avenues for exercising self-determination."
The letter said the prisoners were willing to work with the federal government to reach "a just and dignified political solution to our colonial problem." It said the prisoners participated in mostly symbolic "actions," but conceded that "in all liberation processes, there are always innocent victims on all sides."
Adams then drafted the report that recommended neither for nor or against clemency — a document critics seized upon as evidence the clemency process was highly irregular.
"The rules do not contemplate the reopening of a completed review — and certainly do not contemplate a report that does not contain an up or down recommendation on clemency," Hatch said during a committee hearing.
An administration figure involved in the clemency process said
Adams' report summarized the process and the alternatives available to President Clinton. The source, who requested anonymity to avoid being drawn into the controversy, said Holder's recommendation in favor of commutation accompanied
Adams' report, which also referenced earlier law enforcement opposition to the clemency.
The report and recommendation reached the White House on July 8, 1999, congressional records show.
Clinton commuted the sentences just more than a month later.
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