Where Is Eric Holder?

President Obama has sometimes faced criticism---including on Lawfare---for not defending NSA more energetically. These criticisms generally predated the president's landmark speech on NSA, which---among other things---did defend the agency and the propriety of its programs. But there is a senior level official who has played virtually no role in the public defense of activity that deeply implicates the integrity of his department: Attorney General Eric Holder.

Why, you ask, should the attorney general be out front as a point person in the administration's response to revelations about an agency in the Department of Defense, on that is not engaged in law enforcement? I'll give you a few reasons:

First, it's actually not the NSA's name on those applications for bulk telephony metadata orders under Section 215. Those orders are issued on application of the FBI, which is a Justice Department component.

Second and more importantly, every one of those orders and orders under Section 702 are sought by the Justice Department's National Security Division, which represents NSA before the FISA Court. The representations made to the court, in other words, are being made by Holder's people. The legal position being advanced---the one that so many people seem to find lawless---is being advanced by Holder's Justice Department.

Third, NSD doesn't just represent NSA before the courts. It also has an oversight role to keep it within the law. NSD is actually the front-line overseer of a great deal of NSA activity. So to the extent people believe that US government activity is out of control, they believe---among other thing---that there has been a systemic failure of Holder's department to do its job.

Finally, and perhaps most generally, the anxieties about NSA reflect the apparently widespread belief that the US government is a lawless criminal enterprise systematically running riot over the civil liberties of nearly everyone in the world. If I were the chief law enforcement officer of the United States, I would feel a certain obligation to speak up about that---early, often, and repeatedly.

Back in the 1970s, when the US government really was a lawless criminal enterprise systematically running riot over civil liberties, the attorney general---Ed Levi---was the point person on wide-ranging reforms. To this day, we speak of the Levi Guidelines, which emerged from the period. The FISA itself, though not passed until later, began under his leadership. Today, the point person on the administration's public response to the Snowden crisis is Bob Litt (who, by the way, will be this week's guest on the Lawfare Podcast), who is general counsel to the DNI.

And Holder? Well, here's Holder's prepared statement for his oversight hearing before the Senate Judiciary Committee the other day. Judge for yourself.