Restoring Public Confidence in the Justice Department: Seven Key Steps Attorney General Mukasey Should Take

By CARL TOBIAS

Tuesday, Jan. 08, 2008

In mid-November, retired U.S. District Judge Michael Mukasey assumed the critical position of U.S. Attorney General. Although Mukasey initially seemed headed for an easy appointment, Senators became increasingly concerned about his views over the confirmation process's course. In particular, numerous Senators appeared troubled by Mukasey's expansive perspectives on federal authority -- especially when the three constitutionally-created branches of government share power. They also were concerned about Mukasey's views on the practice of waterboarding, which Mukasey would not declare to be torture and therefore illegal, and on the use of torture in general.

Now that Mukasey is in office, I believe there are seven key steps he must take to restore public confidence in the Department of Justice (DOJ).

Step One: Continue to Address the Issues Created by DOJ's Prior, Improper Politicization

The Bush Administration's dismissal of numerous U.S. Attorneys, for what seem to be political reasons, provoked an uproar. This move led many higher-level DOJ officers, including the top three officials and several Assistant Attorneys General, to resign. It also left approximately twenty U.S. Attorney's Offices without permanent heads. The natural result has been to undercut professionalism and morale.

Mukasey plainly recognizes the need to promptly restore those attributes, depoliticize DOJ, and fill the vacancies. He began by carefully considering whether to select as his Deputy Attorney General (DAG), the Chief Operating Officer, Craig Morford, a well-respected career prosecutor whom Alberto Gonzales had named the acting DAG. However, Mukasey wisely chose, instead, U.S. District Judge for the Northern District of Illinois Mark Filip, who has consistently earned high marks from Chicago attorneys who practice in his court.

Mukasey still must fill the prolonged vacancy in the head of the Office of Legal Counsel (OLC), which advises federal agencies on their operations' legality and which issued the infamous "torture memos." He should probably not choose Steven Bradbury, who has provoked controversy as the acting leader. Indeed, Democrats were so concerned President George W. Bush might use a recess appointment to name Bradbury that they instituted "pro forma" sessions between the first and second sessions of the 110th Senate to block exercise of the recess appointment power. A preferable choice would be someone who is perceived as more neutral, and who is not closely linked to the Bush Administration. Good examples might be former Southern District of New York U.S. Attorney Mary Jo White, and former Clinton Administration DAG Eric Holder.

Meanwhile, Mukasey must think carefully about filling all 20 open U.S. Attorney positions, given that most individuals appointed might serve for less than a year and that confirming them would be resource- intensive. Perhaps he should concentrate on those openings that can be easily filled.

Finally, to further depoliticize DOJ, Mukasey should impose stringent restrictions on communications between White House political officials, as well as DOJ officers, and the 93 U.S. Attorneys. A valuable first step was his December decision to sharply limit communications between the White House and DOJ.

Step Two: Address the Troubling Issue of Domestic Surveillance

Two years ago, President George W. Bush acknowledged that NSA had been conducting domestic surveillance without the court-issued warrants that the 1978 Foreign Intelligence Surveillance Act (FISA) requires. Since then, lawmakers and the public have voiced much concern that this activity invades privacy, but Congress recently authorized surveillance, pursuant to certain limitations, for 180 days.

Mukasey should advise the president and Congress to balance national security and civil liberties meticulously in this context. Mukasey has proposed, in particular, that FISA be updated to address post-9/11 realities, and that telecoms which cooperated with the government receive immunity. However, this is a mistake: Mukasey should support altered legislation that more robustly protects civil liberties, and that does not grant blanket immunity to the telecoms that opted to betray their customers' expectations of privacy at the government's request. (Notably, not every telecom complied, suggesting the government did not compel compliance.)

A promising sign regarding domestic surveillance came in mid-November, when it was announced that the DOJ Office of Professional Responsibility would reopen its investigation of warrantless wiretapping's legality after a lengthy hiatus that Gonzales had instituted.

Step Three: Draw Clear Lines Regarding Permissible and Illegal Interrogation Methods, and Continue to Actively Investigate the Destroyed CIA Tapes

Since 9/11, the Administration has advocated, and appears to have used, harsh interrogation procedures on suspected terrorists. Many observers believe some of these measures are illegal torture - and are also morally dubious, inefficacious and counterproductive, as they can encourage the methods' use against the U.S. Mukasey should not defer to the White House's views on this question, but rather should clearly state that torture is never justified, and that waterboarding, in particular, is illegal under U.S. law, including treaties to which the U.S. is a signatory.

With the December revelation that the CIA had destroyed videotapes showing harsh procedures' use, Mukasey appropriately opened a preliminary DOJ-CIA investigation. When this inquiry showed that crimes may have been committed, Mukasey appointed John Durham, the Deputy U.S. Attorney for the District of Connecticut and a veteran federal prosecutor, to lead a criminal probe. Because DOJ, CIA and White House officials were apparently involved in the decision-making regarding the tapes' destruction, it may be preferable to appoint a Special Counsel to investigate.

Step Four: Carefully Examine the Constitutionality of the Administration's Use of Executive Power

Many observers, including senators and federal judges, have recently expressed concerns that the Executive has accumulated power that the Constitution grants to the other branches. For instance, the Administration unilaterally and secretly established the domestic surveillance program, and initially unilaterally established military tribunals for trying suspected terrorists, as well.

When Senators asked Mukasey if the president must obey federal statutes, he answered: "That would have to depend on whether what goes outside the statute nonetheless lies within the authority of the president to defend the country." As Attorney General, Mukasey must find that the president has a duty to obey the law, especially when the Constitution authorizes Congress to "provide for the common defense."

Overall, Mukasey should carefully explore ways to limit power's concentration in the Executive while restoring checks and balances and separation of powers.

Step Five: Don't Press For National Security Courts When the Federal Courts Will Suffice

Mukasey recently advocated special national security courts, rather than use of federal courts, to try suspected terrorists. However, this was a mistake: Federal judges can resolve these cases, just as they have decided equally vexing matters for two centuries - as Mukasey himself proved, as a judge, by presiding over the trial of terrorists who had plotted to destroy Manhattan landmarks.

Step Six: Consider Closing the National "Black Eye" of Guantanamo Bay

Mukasey testified that indefinitely detaining hundreds at Guantanamo was a national "black eye." He is absolutely right. Thus, he should consider supporting closure of the facility and overseeing carefully how detainees would then be treated. If Mukasey favors closure, he should develop measures for affording detainees due process wherever they are next transferred, and consider the release of those against whom there is no persuasive evidence of a terrorism connection.

Step Seven: Move Forward on Filling Lower Court Vacancies

Finally, eighteen of forty-five lower federal court openings still have no nominees, and these vacancies erode justice by slowing case disposition and subjecting sitting judges to larger caseloads that are more difficult to handle and manage.

Mukasey should urge consultation with home-state senators, and work toward the submission of consensus nominees.


Carl Tobias is the Williams Professor at the University of Richmond School of Law.

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