The Next Attorney General
What has been repaired and what needs improvement at the Justice Department

Monday, December 1, 2008

FOR MOST of the past eight years, the Justice Department has been roiled by controversy largely of its own making: Secret torture memos. Political litmus tests for nonpolitical posts. The questionable firing of U.S. attorneys.

There are several changes that Barack Obama's administration must make, but first a few things it should build on.

Incoming leaders can thank Attorney General Michael B. Mukasey for beginning to fix many of the department's ethical lapses. During his brief tenure, Mr. Mukasey issued guideposts limiting contacts between the Justice Department and the White House concerning ongoing investigations. He has been outspoken about the absolute necessity of keeping political considerations out of the hiring process for career and nonpolitical employees. The next attorney general -- the president-elect is said to be favoring former deputy attorney general Eric H. Holder Jr. -- should be just as clear and just as adamant.

The administration should also recognize that the FBI has done a good job of reining in former excesses. No less a critic than the Justice Department's Office of Inspector General credited FBI Director Robert S. Mueller III this year with making significant headway in the agency's handling of national security and exigent letters. The inspector general earlier had revealed the agency's lax controls in the use of these powerful and intrusive tools. The incoming leaders at Justice should keep in place new guidelines that give FBI agents involved in intelligence or terrorism probes the discretion to use techniques already available to agents working on routine matters. Vigilance and congressional oversight will continue to be important checks.

Most important, the new administration should maintain counterterrorism and counterintelligence as top priorities. There have been rumblings in some Democratic circles about these areas absorbing too much of the agency's money and personnel. Some fiscal rearranging may be in order. But new leaders must not let the absence of a recent attack on domestic soil lull them into thinking that significant law enforcement resources are not needed.

Where the new Justice Department must part ways with the old is in the area of terror policy and executive power. As The Post's Carrie Johnson reported recently, former Clinton Justice official Walter E. Dellinger III has urged the next president to rely on a bipartisan group of experienced hands from the Office of Legal Counsel to review and make recommendations about existing memos. This is a good idea. The group also should review OLC memos regarding executive privilege and executive power.

In the future, the Justice Department should make OLC memos public whenever possible. Memos involving national security matters that are too sensitive to release should be made available to lawmakers on the relevant oversight committees for private review.

The new attorney general also should ensure that an independent commission or the inspector general review the anthrax investigation. In the summer, the FBI identified Fort Detrick scientist Bruce E. Ivins as the lone suspect in the 2001 anthrax attacks that killed five and sickened many more. Mr. Ivins took his own life before he could be put on trial. An independent examination of the anthrax probe should review the methods used by the FBI in investigating Mr. Ivins and, before him, Steven J. Hatfill, who was the FBI's initial suspect before being exonerated this year. The review must also examine how Mr. Ivins maintained a security clearance despite apparently suffering from serious mental illness.

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