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.