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Mukasey Says Obama May Have to Wait for Some Legal Opinions

By Carrie Johnson
Washington Post Staff Writer
Thursday, December 4, 2008

Attorney General Michael B. Mukasey asserted yesterday that the "level of cooperation and communication is very high" between his team and the transition group for President-elect Barack Obama.

But the Justice Department's new leaders may not gain access to the Bush administration's most sensitive legal opinions until after the January inauguration, Mukasey told reporters in what could be his final news conference.

"Without getting into particular things that they've requested, they are getting as much as they can, as quickly as they can" from the Office of Legal Counsel, the department unit that has issued key rulings underpinning detainee treatment and electronic surveillance since the Sept. 11, 2001, attacks.

House and Senate Democrats and Clinton-era Justice Department officials have called for the speedy release of the documents. Three veterans of the Office of Legal Counsel -- Dawn Johnsen, Martin Lederman and Christopher H. Schroeder -- are among the members of the transition unit, several of whom received special security clearances.

But Mukasey said yesterday that the legal opinions are drafted at the request of other federal entities, such as the Defense Department and the CIA, which have a say in how and when they are released. Some of the materials also are highly classified, which adds a layer of complexity.

In some cases, Mukasey said, it is possible that certain documents will not be available to Obama's team until he takes the oath of office in January.

For the most part, the department transition has run smoothly, and lawyers connected to the Obama team have been interviewing career employees and politically appointed leaders of critical units, including the national security, civil and criminal divisions.

Mukasey said he has yet to meet Eric H. Holder Jr., the former federal prosecutor nominated Monday by Obama to take the nation's top law enforcement job. Yesterday, Mukasey refused a request to provide advice to his likely successor, instead pointing out that the department had changed in orientation since the terrorist attacks seven years ago.

Looking back on his year-long tenure, Mukasey said one of his most important tasks was helping to shepherd electronic surveillance legislation through the Congress and developing a uniform set of guidelines for FBI counterterrorism probes.

But he said Congress and the new administration needs to do more work to develop a single set of standards for reviewing claims by terrorism suspects who allege they have been wrongfully held at Guantanamo Bay, Cuba, without judicial oversight for as many as seven years.

The attorney general also scoffed at the idea of prosecuting lawyers and Bush administration figures who designed or approved harsh interrogation practices and warrantless eavesdropping programs, an approach that has met with favor among some left-leaning interest groups and Democrats in Congress.

"There is absolutely no evidence that anybody who rendered a legal opinion . . . did so for any reason other than to protect the safety of the country and in the belief he or she was doing something lawful," Mukasey said. "In those circumstances, there's no occasion to consider prosecution or pardons."

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