Holder pressed for 1999 clemency
Attorney general nominee Eric H. Holder Jr. repeatedly pushed some of his subordinates at the Clinton Justice Department to drop their opposition to a controversial 1999 grant of clemency to 16 members of two violent Puerto Rican nationalist organizations, according to interviews and documents.
Details of the role played by Holder, who was deputy attorney general at the time, had not been publicly known until now. The new details are of particular interest because Republican senators have vowed to revisit Holder’s role during his confirmation hearings next week.
Holder had no comment for this article, but a spokesman for President-elect Barack Obama’s transition team said Holder’s actions were appropriate.
President Clinton’s decision to commute prison terms caused an uproar at the time. Holder was called before Congress to explain his role but declined to answer numerous questions from angry lawmakers demanding to know why the Justice Department had not sided with the FBI, federal prosecutors and other law enforcement officials, who were vehemently opposed to the grants.
Some religious groups and influential individuals, including President Carter, had endorsed the commutations. But Clinton’s decision outraged law enforcement officials, who had tried to contain a bombing campaign in New York, Chicago and elsewhere in the 1970s and 1980s by groups seeking independence for Puerto Rico from the United States.
New interviews and an examination of previously undisclosed documents indicate that Holder played an active role in changing the position of the Justice Department on the commutations.
Holder instructed his staff at Justice’s Office of the Pardon Attorney to effectively replace the department’s original report recommending against any commutations, which had been sent to the White House in 1996, with one that favored clemency for at least half the prisoners, according to these interviews and documents.
And after Pardon Attorney Roger Adams resisted, Holder’s chief of staff instructed him to draft a neutral “options memo” instead, Adams said.
The options memo allowed Clinton to grant the commutations without appearing to go against the Justice Department’s wishes, Adams and his predecessor, Margaret Colgate Love, said in their first public comments on the case.
“I remember this well, because it was such a big deal to consider clemency for a group of people convicted of such heinous crimes,” said Adams, the agency’s top pardon lawyer from 1997 until 2008. He said he told Holder of his “strong opposition to any clemency in several internal memos and a draft report recommending denial” and in at least one face-to-face meeting. But each time Holder wasn’t satisfied, Adams said.
The 16 members of the FALN (the Spanish acronym for Armed Forces of National Liberation) and Los Macheteros had been convicted in Chicago and Hartford variously of bank robbery, possession of explosives and participating in a seditious conspiracy. Overall, the two groups had been linked by the FBI to more than 130 bombings, several armed robberies, six slayings and hundreds of injuries.
None of the 16 whose sentences were commuted had been convicted of murder, and most had already served lengthy prison terms.
A spokesman for the Obama transition, Nick Shapiro, confirmed that Holder asked for the “options memo” that preceded the clemency:
“Eric Holder carefully reviewed the FALN clemency request, weighed the positions of both sides, including law enforcement, and concluded that the sentences of up to 90 years imposed on these prisoners was disproportionate to other federal and state sentences. After reaching that conclusion, he directed his subordinates at the department to draft a memo outlining several options, including how such a commutation could be structured to reflect the seriousness of these crimes and to take account of the lengthy time the prisoners had already served.
“President Clinton made the ultimate decision to commute these sentences, conditioned on the prisoners’ agreement to renounce violence and accept restrictions on their travel.”
George Terwilliger, who served as deputy attorney general under President George H. W. Bush and was asked by the Obama transition team to comment, said that although he disagreed with the FALN clemency, Holder’s conduct in the case was appropriate.
“The job of the deputy attorney general is not to be a rubber stamp to the career people” in the pardon office, he said. “The deputy attorney general is supposed to exert some independent decision-making” providing guidance to the president.
Clemency was supported at the time by a range of politically influential people who believed it would help bridge a divide with Puerto Ricans who had long resisted U.S. dominion of the island. The advocates included Carter, who had granted clemency to some FALN members himself; several Nobel Peace Prize laureates; some members of Congress; and Puerto Rican community leaders, many of whom met personally with Holder.
After one meeting with advocates of the FALN prisoners, Holder asked Adams to try to obtain statements of repentance from the inmates to include in the revised clemency report and recommendation being prepared for the White House, according to a 1999 Senate Judiciary Committee inquiry. Clinton later justified the commutations in part by citing his consultation with the Justice Department and the statements of repentance provided by the prisoners.
“The Justice Department is supposed to say what we think on the merits,” said another Justice Department official opposed to clemency at the time, who spoke on the condition of anonymity because of the sensitivity of the subject. Instead, “we were pushed to tell [Clinton] what he wanted to hear, which was to grant it and to provide political cover.”
When Clinton issued the commutations on Aug. 11, 1999, the House and the Senate passed resolutions condemning his decision. Some lawmakers charged that Clinton approved the commutations to bolster Latino support for First Lady Hillary Rodham Clinton, who was building her campaign for senator of New York, and Vice President Al Gore, who was gearing up to run for president.
Holder was called to testify on the case by the Senate Judiciary Committee but, invoking Clinton’s claim of executive privilege, declined to say whether the Justice Department had changed its position on the commutations. Asked what happened after the 1996 report opposing any commutations, he told the senators: “There were subsequent communications with the White House in the months after that recommendation.”
Love, told of the new details about Holder’s role, now says: “It certainly sounds to me that he wanted to at least undercut if not overrule my earlier  negative recommendation. It appears that he effectively gave the White House permission to make the grants.” She added that she had not been aware of Holder’s support for commutation before or after he fired her in 1997 and replaced her with Adams, his former senior aide in the deputy attorney general’s office.
Adams, who received a government award in 2003 for his service, retired in 2008 after an inspector general’s report alleged racist behavior. He denied the allegation, but the report found that he had acted improperly by describing a drug convict applying for a pardon as “about as honest as you could expect for a Nigerian.”
While he worked at Justice, Adams refused to speak publicly about the FALN case. He said he reluctantly agreed to do so when contacted by reporters because he believes the FALN crimes were so serious. He added that he is concerned that there had been misrepresentation of his role in the clemency that may resurface in the confirmation hearing, including suggestions that he may not have taken a position on the matter.
In mid-1998, Adams said, he sent a draft report recommending against any clemency of FALN members to Holder, but he said that Holder did not send it to the White House and instructed him to revise it.
On Aug. 31, 1998, Adams sent a memo to Holder saying, “Pursuant to your request, we have revised the report and recommendation on the Puerto Rican nationalists cases. As was discussed at our last meeting, the desired objective was to recommend that the president grant clemency to the extent it would result in the prisoners’ serving 20 years in prison. . . . " Most had already served 19 years.
In the memo:
Adams listed numerous reasons why the Justice Department should continue to oppose clemency, including that most commutations were inappropriate given the crimes and sentences.
He reminded Holder that Holder had in previous cases given “considerable weight” to the recommendations of federal prosecutors, and that any clemencies would “contravene the strong negative recommendation of two United States attorneys.”
Adams also warned that the convicts’ release would undermine at least four pending prosecutions and investigations of FALN members, and hamper FBI efforts to apprehend some of their co-conspirators and recover millions in bank money stolen by the FALN.
“Questions may be raised about why the department is recommending that clemency be granted to persons who belong to a group the FBI director has identified as such a domestic terrorist threat,” Adams wrote in the memo. Adams warned that the groups’ victims had not been notified.
In another memo, written the same day, Adams cautioned Holder’s chief of staff, Kevin Ohlson, that Holder was risking a political firestorm by even considering granting some of the commutations. “A leak of the proposed report,” he wrote, “would be disastrous.” Neither memo was obtained from Adams. Soon Ohlson told him to draft the options memo, Adams said in a recent interview.
“Contrary to what was bandied about on Capitol Hill at the time, the options paper was not my idea at all,” Adams says. “I prepared it because it was conveyed to me by Holder’s chief of staff that Eric wanted it.”
Ultimately, the Justice Department forwarded the revised options memo to the White House, drawing criticism from Senate Republicans who said it broke department policy by not giving a yes or no recommendation.
After the clemency grant was announced, 11 members of the nationalist group were released from federal prison; one served an additional five years on unrelated charges; two who had been previously released had their fines reduced; and two others remained in prison, refusing to participate in the deal that required them to renounce violence.
Some of Adams’ concerns were borne out. Before their release, the Senate Judiciary Committee concluded, none of the prisoners was pressed to provide information on the whereabouts of stolen funds or fugitive co-conspirators -- one of whom was later killed in a shootout with federal agents.
Republican senators have already pledged to question Holder about his role in Clinton’s infamous last-day-in- office pardon of fugitive financier Marc Rich, whose ex-wife had given campaign donations to Clinton and his presidential library.
But some law enforcement officials and relatives of FALN victims say the FALN commutations are even more troublesome.
“This is an outrage. There is no better word for it, in my view,” said Rick Hahn, a former FBI agent who spent more than 13 years investigating the FALN, when told of the new details about Holder’s role.
The son of one bombing victim agrees.
“Eric Holder has been nominated for the top law enforcement position in the country, yet, if this is true, he supported and pushed for the release of terrorists,” said Joseph F. Connor, whose father, Frank, was killed in the FALN bombing of New York City’s Fraunces Tavern on Jan. 24, 1975. “How can he reconcile that? Why would he push for something so dangerous?”
Peter Wallsten in the Washington Bureau contributed to this report.