By Carrie Johnson
Washington Post Staff Writer
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.
Jamie S. Gorelick, who served as the department's second in command during the Clinton administration, said the resource issue poses "a very big problem."
"It appears the buildup in national security has come at the expense of criminal enforcement resources," she said. "I don't know how they are going to do it in a tight budget environment. Just sorting out whether they've cut meat or bone, or both, is going to be important."
The Obama advisers leading the Justice Department transition will have only a few weeks to make last-minute adjustments to the $25.4 billion budget for 2009. By early February, the 2010 budget will be due, another significant time crunch.
David Ogden, a chief of the department's civil division in the Clinton years, will lead the transition effort. Thomas J. Perrelli, who was a counselor to Attorney General Janet Reno and a classmate of Obama's at Harvard Law School, will serve as a deputy.
Within the Justice Department, career employee Lee Lofthus and political appointee Brian A. Benczkowski have been preparing binders for the transition team that contain sensitive information about ongoing investigations, positions the department has taken in forthcoming legal disputes and more run-of-the-mill data.
Early signals about Obama's view on presidential powers could come in several ongoing court cases that turn on executive privilege, including a House lawsuit against former White House counsel Harriet E. Miers and Chief of Staff Joshua B. Bolten that rests with an appeals court in the District. The Obama team could decide to dial back its use of the privilege in that case, and in Freedom of Information Act lawsuits filed by the ACLU, which seeks information on detainee issues in New York federal courts.
Moreover, by summer, key provisions of intelligence law are set to expire, including a controversial measure that gives the government more power to seize information from libraries under the USA Patriot Act. Civil libertarians say they will watch how Obama handles such issues and what he does even earlier, to review new guidelines for FBI agents conducting national security investigations that will take hold Dec. 1.
Personnel issues will pose another challenge, given the inspector general's findings in three blistering reports that said hiring by Bush Justice Department officials routinely flouted civil service laws.
William Yeomans, a former department civil rights division official who serves as a counselor to Sen. Edward M. Kennedy (D-Mass.), said that "the new team needs to make it very clear that ideology won't trump merit in hiring. There needs to be a comprehensive review, including what needs to be done to correct the hiring situation we now find. . . . There is a great deal of latitude among management to move people around."
One lawyer who offered Democrats advice during the presidential campaign suggested that Obama could decide to keep on several of the nation's 93 U.S. attorneys, such as Patrick J. Fitzgerald in Chicago, in a bid to demonstrate that merit trumps political connections. Fitzgerald, who prosecuted former vice presidential aide I. Lewis "Scooter" Libby and Antoin "Tony" Rezko, a Democratic fundraiser with ties to Obama, is a political independent.