Bill Burck and Dana Perino reveal in NRO that AG Eric Holder expressed views on detainees in amici (friends of court) briefs he signed on to that he was obligated to inform Congress about but failed to. This suggests that the views expressed in those briefs he signed onto presage his inexplicable, highly criticized decisions on Khalid Sheikh Mohammed and the underpants bomber, Umar Farouk Abdulmutallab:
The brief [in Padilla] leaves no doubt that Holder views the loss of intelligence information as sometimes an acceptable tradeoff because, to quote from the brief again, "as a Nation we have chosen to place some limits on Executive authority in order to protect individual authority." Pre-Obama Holder well appreciated that under some circumstances, treating terrorists like criminal defendants may be less protective of national security than treating them like enemies of the United States. But he was willing to take the risk to reduce what he perceived as possible abuses of power by the executive branch.
[F]ailure to disclose to Congress his participation in the Padilla case is even more curious. Did he forget? Did he think it wasn't important enough to mention? Was there some concern it could hurt him at confirmation? Was he worried about being associated with Padilla (who was eventually convicted of terrorism charges in civilian court)?
We do not know. But we imagine the senators on the Judiciary Committee would have preferred to have the opportunity to question Holder about the ideas he set out in his Padilla briefs before they were put into action, and just how much tolerance for risk to our national security he might have.