A Pragmatic Pair Chosen to Confront Terrorism Threat

By Carrie Johnson and Spencer S. Hsu
Washington Post Staff Writers
Tuesday, December 2, 2008

In nominating former federal prosecutors to lead the departments of Justice and Homeland Security, President-elect Barack Obama yesterday selected two Democrats with sterling law-and-order credentials but less experience in detecting threats and gathering intelligence in the age of international terrorism.

Eric H. Holder Jr., the candidate to lead the Justice Department, served as the law enforcement agency's second in command during the waning years of the Clinton administration, overseeing pursuits of violent crime, drug cartels and public corruption offenses. Janet Napolitano, who will run the sprawling Homeland Security bureaucracy, has served since 2003 as governor of Arizona, a border state at the forefront of the nation's immigration debate.

Yet neither nominee boasts much direct experience with the most significant and pressing counterterrorism matters that will cross their desks if they are confirmed by the Senate and take office after the January inauguration.

Among them: how to close the prison at Guantanamo Bay, Cuba, and assess the danger of detainees; how to reorient a domestic wiretapping program once branded as unlawful even by some Bush administration insiders; whether to expend scarce resources prosecuting the intelligence officers and lawyers who developed the framework for policies that Democrats have roundly criticized; and how to prioritize and allocate resources toward the top domestic threats.

At a news conference in Chicago yesterday, Holder played down the tension between protecting American citizens and respecting civil liberties, signaling that he would work to achieve bipartisan consensus in Congress for policies to attack national security threats.

Napolitano promised that the new Obama team will coordinate across all levels of government to ensure a "fast, sound, level-headed and effective" response to natural as well as terrorist-inflicted disasters.

Over 25 years in Washington, Holder fostered warm relationships with lawmakers and courtroom opponents, which could ease his path at a department that until recently was immersed in scandals over partisan and illegal hiring practices. In a speech this past summer to the American Constitution Society for Law and Policy, Holder branded some government initiatives adopted after the Sept. 11, 2001, attacks as "excessive and unlawful."

"I do not question the motives and patriotism of those responsible for those policies," Holder said, as he issued a call to shutter the detention facility for terrorism suspects in Cuba, close secret prisons operated by the CIA and abide by domestic eavesdropping laws. "But this does nothing to mitigate that those steps were wrong when they were authorized and they are wrong today. . . . We owe the American people a reckoning."

But how far that reckoning should extend is the subject of intense debate within the Democratic Party, according to legal sources. Already, civil liberties advocates and left-leaning interest groups are demanding investigations to determine whether Bush administration officials broke the law when they crafted and carried out sensitive intelligence-gathering and detainee-interrogation practices.

Other former law enforcement officials say that prosecutions would be a waste of time and would touch off partisan warfare of the sort that Obama has decried. At progressive legal conferences and among senior lawmakers, a third approach is under consideration: launching a nonpartisan commission under congressional charter to expose past abuses.

The idea appeared to win a measure of support yesterday when Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) told reporters that "personally, I would like to know exactly what happened . . . more as a 'past is prologue' kind of thing. . . . I want to make sure it doesn't happen again. Torture is going to be a major issue."

By and large, GOP lawyers with Justice Department experience said they expect significant adjustments in the area of national security, but they mostly rejected the notion that Holder and Napolitano would repudiate their predecessors' approach entirely.

Viet Dinh, a Georgetown University law professor and former Bush administration assistant attorney general, called both "wise choices" that "speak to a continuity that is essential" in U.S. counterterrorism policy.

"There are obviously policy refinements along the way and at the margins, but the overall strategy of the U.S. government has been fairly consistent over several administrations," Dinh said. "What you need are experienced, intelligent hands on deck, and that's what you get with Eric Holder and Napolitano."

Reaction to Napolitano's selection focused on her deft handling of the divisive immigration debate in Arizona, a Republican-leaning state where she won reelection in 2006 while arguing for a combination of tough enforcement, humane treatment of illegal immigrants and economic pragmatism.

Although Napolitano was the first governor to call for National Guard troops to help secure the border in 2006, House Republicans attacked her centrist image head-on yesterday, calling her a "sheep in wolf's clothing" whose reputation as a tough enforcer was unearned.

"She talks tough, but her record is weak," said Rep. Lamar Smith (Tex.), the top Republican on the House Judiciary Committee. In a statement, Smith called Napolitano's selection "troubling" and "an early sign that the Obama administration intends to weaken enforcement and push for amnesty."

Former Bush homeland security adviser Frances Fragos Townsend said Napolitano passed up opportunities to play politics with the National Guard issue. "There would be few governors as well qualified as she is with her experience to move to DHS," Townsend said.

Douglas W. Kmiec, a law professor at Pepperdine University who considers himself Republican but supported Obama in the presidential race, described the nominees as pragmatists. "Holder knows how to draw the subtle distinctions necessary to maintain the delicate balance between national security and civil liberty," Kmiec said.

That balance will challenge the next attorney general from the start, as administration lawyers grapple with whether to change policy approaches even as hundreds of Guantanamo Bay detainees challenge their detentions in U.S. District Court in Washington.

The secretary of homeland security, too, will inherit many challenges. Those include the politically delicate questions of whether to scale back immigration enforcement, whether to continue investing hundreds of millions on unproven surveillance technology to erect a "virtual fence" at the border, and how to meet a 2012 congressional mandate to screen 100 percent of U.S.-bound cargo overseas for nuclear materials.

Analysts say it would be a mistake to assume that Napolitano would immediately bring a lighter hand to domestic security measures, if only because of the risk of appearing weak on terrorism.

Sen. Joseph I. Lieberman (I-Conn.), chairman of the Senate homeland security committee, called Napolitano "a strong nominee" and skilled manager and leader of a border state. Still, he noted in a statement, "I respectfully look forward to hearing the Governor's perspective on the anti-terrorism responsibilities of the Department."

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