Obama Team Faces Major Task in Justice Dept. Overhaul
Thursday, November 13, 2008
As a transition team for the Obama administration begins work on a Justice Department overhaul, the key question is where to begin.
Political considerations affected every crevice of the department during the Bush years, from the summer intern hiring program to the dispensing of legal advice about detainee interrogations, according to reports by the inspector general and testimony from bipartisan former DOJ officials at congressional hearings.
Although retired federal judge Michael B. Mukasey, who took charge of the department in the winter, has drawn praise for limiting contacts between White House officials and prosecutors, and for firmly rejecting the role of politics in law enforcement, restoring public confidence in the department's law enforcement actions will be central, lawmakers and former government officials say.
"The infusion of politics into the Justice Department and an abdication of responsibility by its leaders have dealt a severe blow," Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Arlen Specter (Pa.), the panel's ranking Republican, wrote in an opinion piece last month. "Great damage has been done to the credibility and effectiveness of the Justice Department."
Ron Klain, who was chief of staff to Vice President Al Gore, said that the preelection brainstorming sessions of Democrats who want to fix the Justice Department sound like "an escalating composition of woes," not unlike the health-related talk at his mother's mah-jongg games. "Oh, my knee; no, my back; no . . . " he moaned over audience laughter at a recent luncheon held by the American Constitution Society.
Topping the list of concerns is the Office of Legal Counsel, a once-obscure operation whose advice guides some of the government's most sensitive and controversial policies, from domestic wiretapping to the appropriateness of handing out public funding to religious groups.
Many of the OLC's memos on interrogation and warrantless eavesdropping remain secret, even though lawmakers have clamored for their release. Democrats say they expect to find fresh surprises when they open the legal vault.
Officials at interest groups, including the Center for American Progress and People for the American Way, have called on President-elect Barack Obama to devote significant attention to the legal office. Christopher Anders, senior legislative counsel at the American Civil Liberties Union, urged this week that the new administration withdraw all of the OLC opinions in the interrogation and detention area and replace them with "a single opinion that should be made public."
Walter E. Dellinger III, a Justice official during the Clinton administration, has encouraged the next president to recruit OLC veterans from both Democratic and Republican camps to review the national security opinions and recommend changes.
Obama will have to do a careful balancing act. At a conference in Washington this week, former department criminal division chief Robert S. Litt asked that the new administration avoid fighting old battles that could be perceived as vindictive, such as seeking to prosecute government officials involved in decisions about interrogation and the gathering of domestic intelligence. Human rights groups have called for such investigations, as has House Judiciary Committee Chairman John Conyers Jr. (D-Mich.).
"It would not be beneficial to spend a lot of time calling people up to Congress or in front of grand juries," Litt said. "It would really spend a lot of the bipartisan capital Obama managed to build up."
Another critical, early judgment must be made about how to allocate scarce resources without shortchanging national security. Since the Sept. 11, 2001, attacks, more than 7 percent of the department's budget shifted to terrorism, away from drug trafficking, organized crime and white-collar misdeeds, according to an analysis by the Government Accountability Office.