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Justice Run Amok

Attorney General Eric Holder is running into a buzz saw of inquiries from Republicans on Capitol Hill. They may not have the votes to derail most of the administration’s agenda items or block its nominees (although a surprising amount of the former is occurring with regard to national security), but that has not stopped them from putting Holder on the hot seat. And their queries may have the effect of rallying public opinion and/or giving the Obama Department of Justice second thoughts about its approach to the war on terror.

On Monday, May 18, following a recent Senate hearing, Sen. Richard Shelby sent a letter to Holder. The questions asked are clearly aimed at drilling down on the Obama administration’s efforts to investigate and potentially punish Bush administration lawyers Jay Bybee and John Yoo, who drafted the now released memos on CIA enhanced interrogation methods. Shelby’s first question goes directly at Holder personally, inquiring:

During your tenure as the Deputy Attorney General of the United States, 1997 to 2001, did you know that President Clinton approved of and actively engaged in the practice known as rendition?  Did you or anyone in the Department of Justice express a legal opinion on, participate in, or approve any rendition?  What actions did you take to ensure any such rendition complied with United States or international law? What actions did you take to ensure that any interrogations of any such individuals rendered by the United States were conducted by the receiving country in a manner consistent with United States or international law? Did you or anyone on your behalf ever determine whether any useful intelligence was obtained from any such individuals rendered by or on behalf of the United States? Did you or anyone on your behalf ever attempt to determine how that information was obtained and whether any such individuals rendered by or on behalf the United States was subjected to any treatment that would violate United States or international laws?

What’s that got to do with the Bybee-Yoo inquiry? Well, this is the “what’s good for the goose is good for the gander” line of attack. Really, what is to stop some future administration from pursuing prosecution of Holder as well as other Clinton or Obama administration lawyers for their role in questionable practices? After all, if we are going to investigate the involvement of lawyers in “torture” no one should be exempt.

Shelby also inquires on what basis Bybee and Yoo’s work is being attacked and whether those now second-guessing their work have “expertise in constitutional law, intelligence matters, treaty compliance, and/or separation of powers.” And he asks why it was that former Attorney General Michael Mukasey and his deputy criticized the investigation and rejected the idea that one administration should prosecute lawyers from a prior administration. Here the message is clear: this inquest has all the trappings of a partisan witch hunt rather than a sober legal investigation.

But Shelby’s line of inquiry isn’t limited to the Byee and Yoo investigation. Like Sen. Jeff Sessions (who has yet to receive a response to his inquiry), he wants to know if Holder believes that “the president has the legal authority to bring terrorists, former terrorists or anyone who has received terrorist training into the United States and release them into our communities.” And he would  like “a copy of that authority.” Once again, Republicans want to know on what basis the Justice Department is going to maneuver around federal law preventing release into the U.S. of those detainees (such as the Uighurs) who had received terrorist training. The president isn’t going to simply wave his hand and claim he’s exempt from following a federal statute, is he? (And of course, Congress has now complicated matters by refusing to fund the detainees’ relocation to the U.S. without at the very least seeing what the administration’s plan looks like.)

And Shelby is not alone in his grilling of Holder. Holder has also come under attack from House Republicans who, in some well-crafted questioning at a recent hearing, went after Holder’s notion that any Bush-era officials can be prosecuted for “torture” absent a showing of “specific intent” — that is, a showing that those administering the interrogation methods had the intent of inflicting severe pain (a standard the Justice Department itself employed in a recent Sixth Circuit case.) The lead prosecutor of the 1993 World Trade Center bombing case, Andy McCarthy, sums up:

The bottom line is, Rep. Lungren skillfully steered Attorney General Holder into the truth: As a matter of law, CIA waterboarding — like the same waterboarding actions featured in Navy SEALs training — cannot be torture because there is no intention to inflict severe mental or physical pain; the exercise is done for a different purpose. When Rep. Gohmert’s questioning made it crystal clear that Holder’s simplistic “waterboarding is torture” pronouncement was wrong, the attorney general — rather than admitting error — tried to change the legal definition of torture in a manner that contradicted a position the Justice Department had just urged on the federal courts. It seems that, for this attorney general, there is one torture standard for Bush administration officials, and another one for everybody else.

All of this suggests that the Obama Justice Department is on shaky legal ground, unprepared it seems to substantiate its legal positions on hot button issues. At the very least the new administration’s promised effort to “depoliticize” the Justice Department is under severe scrutiny. Whether on the administration’s decision to prosecute a prior administration’s lawyers or to release Guantanamo prisoners, Republicans suspect, with good reason, that the Justice Department lawyers are not so much interested in applying the law with exactitude but in extracting a pound of flesh to satisfy the administration’s netroot base. And they intend to force Obama’s Justice Department, part of the most “transparent administration in history,” to explain and justify its behavior.

Moreover, by their line of questioning the Republicans hope to provoke, if nothing else, some concern among the current crop of Justice Department lawyers. What sort of precedent do they want to set and could they in the future be caught in the web of recrimination which they may be setting in motion?

We already know that the advice of the Justice Department with regard to release of the detainee abuse photos has been rejected by cooler heads in the White House. Perhaps those same officials who recognized the danger and unsoundness of the lawyers’ advice to release inflammatory photos will exercise some greater supervision of the Justice Department’s work on the Bybee-Yoo investigation and other matters. From Holder’s responses on Capitol Hill and the performance of the Justice Department to date, it seems the Holder Justice Department is badly in need of some strict oversight.