After Gonzales, Justice seeks to regain trust of employees
- By Shane Harris , Peter H. Stone , Corine Hegland and Edward T. Pound
- August 31, 2007
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Quiet and unassuming, Gonzales was a perfect fit for an administration that operates close to the vest and puts a premium on loyalty. After 9/11, he helped craft some of the White House's most controversial policies -- everything from harsh interrogation guidelines to expanded domestic surveillance to rules for military tribunals. This year, after the Democrats took control of Capitol Hill, Congress finally began looking for answers, and Gonzales often appeared as the man who had none or was confused about events. He specialized in "I have no recollection" and "I have no memory," when questioned by senators trying to learn whether several U.S. attorneys were fired for political reasons.
Those firings, along with contradictory testimony from other Justice Department officials on the issue, ultimately led to Gonzales's undoing. Internal department investigators now are reviewing events surrounding the dismissals and, separately, allegations of inappropriate political interference in department decisions.
Whatever the verdict on Gonzales, this much is clear: The next attorney general has a huge mess to clean up. Uppermost will be restoring credibility to a department dogged by allegations that partisan politics have subverted policies and hiring actions. Key senior leadership positions also remain unfilled, and career lawyers have been fuming over the turmoil.
"When you bring the Justice Department into low repute," says Philip Heymann, a Harvard law professor who served as head of Justice's Criminal Division in the Carter administration, "you sacrifice morale."
Mending fences on the Hill is another critical issue that needs close attention. But that won't be easy, as Democratic-led committees are conducting vigorous investigations.
The House Judiciary Committee voted in July to issue contempt citations for two of Bush's closest associates in the confrontation over the prosecutors' firings. That panel is also investigating whether the department, under Gonzales, engaged in selective prosecutions that were politically motivated. Last but not least are national security issues, including the domestic surveillance program and the knotty problem of what to do with prisoners captured in the war on terrorism.
The president has yet to nominate a replacement for Gonzales. Michael Chertoff, secretary of the Homeland Security Department, seemed initially to be the leading candidate, but his appointment is unlikely, officials say. Among others being mentioned are George Terwilliger, who served as deputy attorney general in the administration of George H.W. Bush; Theodore Olson, a former solicitor general in the Justice Department; and Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia. When Gonzales leaves on September 17, Solicitor General Paul Clement will serve as the acting attorney general.
The administration, says one senior government official, wants to move quickly. However, the official says, it must find a candidate who not only can fix the damage but also be "somebody the president is comfortable with."
When Gonzales's successor does finally sit down at the attorney general's desk, at the top of the To Do list will be these seven challenges.
Repair A Battered Department
No sooner had Gonzales announced his resignation than some career lawyers in the department breathed a collective sigh of relief. "He was a huge embarrassment," says one midlevel department attorney, complaining that Gonzales had misled Congress in testimony about the firings of the federal prosecutors. "He was too close to the president. You need somebody with independence."
The successor's job, current and former department officials say, is to restore relations with the U.S. attorneys' offices around the country and to improve morale within department headquarters. For that to happen, the president must nominate an attorney general who has immediate credibility inside the 110,000-person department and in Washington.
"Every attorney general has to have a bit of Thomas Becket in him," says Mark Corallo, who was the chief spokesman for Attorney General John Ashcroft, the immediate predecessor to Gonzales. "Your duty is not to the king. It is to the rule of law."
There's an additional problem: Other senior department officials have jumped ship recently, including the deputy attorney general and the associate attorney general, the department's No. 2 and No. 3 positions. Joseph diGenova, a prominent Republican and former U.S. attorney in Washington during the Reagan administration, thinks it will be difficult to fill some of the top jobs. "There's not that much time left" in Bush's second term, he says. "It is going to be pretty rough to get people to take jobs where they need to be confirmed, go through all of that, put their holdings in blind trusts and so forth." Moreover, nearly one-fourth, or 22, of the department's 94 district offices around the country are headed by acting or interim U.S. attorneys.
Dennis Boyd, the executive director of the National Association of Assistant United States Attorneys, which represents about one-third of the nation's 5,200 assistant attorneys, says that morale among department attorneys has eroded. One reason, he says, was that prosecutors worried their cases were being perceived, incorrectly, as politically motivated. Now that Gonzales is stepping down, Boyd says, his organization would like to see Congress shift its focus to law enforcement issues, such as better court security for prosecutors.
"We are hopeful now that Congress can get to the business it is supposed to be dealing with -- law enforcement legislation," Boyd says.
Reduce Political Interference
Arguably the biggest stain from the Gonzales era is the perception that conservative credentials and loyalty to the White House were key factors driving the department's policy and personnel decisions. Former department officials say that Gonzales's misguided and inept efforts to employ ideological litmus tests caused much of the damage.
Heymann says that the first move must be "straightening out the system for hiring and promoting career employees." The Justice Department "lost widespread support in the legal and judicial communities," he adds, because career positions were filled by people who held political views in lockstep with the White House. The next attorney general, Heymann says, should make a public announcement that the White House "will not be consulted or provide advice on decisions involving individual prosecutions."
Similarly, Joe Rich, who spent 36 years at Justice and was in charge of voting rights in the Civil Rights Division before he left in 2005, says that in "all the years prior to Bush the hiring of career lawyers had been very nonpolitical." Rich has testified that the situation deteriorated so badly that 20 of the division's 35 lawyers either quit or transferred to other jobs at Justice over the past two years because of the politicization.
More broadly, James Cole, a top prosecutor in the public integrity section from 1980 to 1992, stresses that Gonzales's successor should "bring in a cadre of people who have been, or had been, in the Department of Justice for a long time and know how the place works." Cole says that Justice has a long tradition of being a "pretty independent agency," and that the attorney general must make clear to department employees "their client is the American people and not the president."
Establish Credibility With The Public
When Gonzales testified before the Senate Judiciary Committee in July on the U.S. attorney firings, a clearly frustrated and angry Arlen Specter, R-Pa., the panel's ranking member, issued this blunt appraisal to the attorney general: "I do not find your testimony credible, candidly."
Confidence in the department among the American public is also at its nadir. Olson, the former solicitor general, would not talk about Gonzales's performance, but he stressed in an interview that "the American people have to have confidence that the department is being run fairly and evenhandedly."
Michael Bromwich, who was inspector general at Justice during the Clinton administration, says that restoring credibility is "a very tall order." Bringing in a "strong lawyer or policy maker, and preferably both," he says, would be a good start. The next attorney general should also be acceptable to both sides of the aisle in Congress and someone who can speak "knowledgeably" in public about the key challenges facing Justice, including law enforcement and combating terrorism.
Others suggest that clearing up the clouds hanging over the department would go a long way toward lifting Justice's standing with the public. Former department officials point out that it would be helpful for the department to finish its internal probe of the U.S. attorney firings as quickly as possible. That investigation, conducted jointly by the inspector general's office and the Office of Professional Responsibility, initially focused on how the department handled the firings. It has since broadened to look at questions related to political influence in hiring decisions and the veracity of Justice officials' congressional testimony. Heymann says that Justice's credibility would climb if the "processes, opinions, and standards" of the department were "made more transparent."
Patch Up Relations With Congress
This, too, will be a huge challenge for the next attorney general. Democrats have long memories (remember the Republican investigative assault on the Clinton administration), but some GOP lawmakers believe that accommodations can still be made. For starters, consulting with Congress and naming a new attorney general acceptable to both ends of Pennsylvania Avenue would be a major step forward, the thinking goes.
Sen. Charles Grassley, R-Iowa, a member of the Judiciary Committee, said in a statement: "While credibility with the Senate and even within the department won't just happen overnight, the prompt confirmation of a well-respected individual to be attorney general can certainly begin to restore that trust."
Separately, Judiciary Committee Chairman Patrick Leahy, D-Vt., has said it is crucial for President Bush to consult with Democratic and Republican leaders before he nominates a candidate. The White House appears to understand this. After Gonzales announced his resignation, White House Counsel Fred Fielding made courtesy calls to Sen. Charles Schumer, D-N.Y., and other members of the Judiciary panel, according to officials.
Democrats also say they want an attorney general who will answer their questions. House Judiciary Committee Chairman John Conyers, D-Mich., a strong critic of Gonzales, says that the new attorney general needs to be candid and cooperative. If that happens, Conyers said, "it wouldn't take more than four or five sentences for us to establish a relationship."
But given the history of conflict and the political benefits that might be realized by continuing investigations, it's likely that relations won't improve greatly, if at all, no matter who is named to fill the post. Democrats, now in the driver's seat, have launched a series of investigations into the Bush administration, and there is no indication that they plan to slow down any time soon.
Conyers, for one, made it quite clear that he isn't going to take his foot off the pedal. His says his panel will continue probing the White House role in the prosecutor firings, as well as other matters. In late July, Conyers's committee voted along party lines to issue contempt citations to Joshua Bolten, the White House chief of staff, and Harriet Miers, the former White House counsel. Both had refused to comply with subpoenas issued after President Bush declared that their testimony was covered by executive privilege.
The Senate Judiciary Committee, meanwhile, is also investigating the U.S. attorney dismissals and is expected to hold hearings on other controversial issues, including the government's surveillance activities in the wake of 9/11.
Fix Warrantless Eavesdropping
Before its August recess, Congress passed an amendment to the Foreign Intelligence Surveillance Act that allows the attorney general and the director of national intelligence to authorize clandestine monitoring of people "reasonably believed" to be located outside the United States. The law broadens the government's intelligence-gathering powers, and it effectively makes the attorney general the co-director of the National Security Agency's effort to track terrorists through the global telecommunications network without first obtaining warrants.
The law, known as the Protect America Act, comes up for renewal in February. It is essentially a compromise measure: Democrats were unwilling to give Gonzales the sole authority to approve warrantless wiretapping, and they insisted that the intelligence director be added to the mix. Director of National Intelligence Mike McConnell expended tremendous personal political capital to get the law passed. He told lawmakers that it was needed to comply with a court ruling that intelligence agencies couldn't intercept certain foreign-based communications without warrants. Democrats reluctantly agreed, earning the condemnation of liberal activists and opponents of the administration's surveillance efforts.
It will be up to McConnell and the new attorney general to keep the modified law in place or to develop a new regime that gives intelligence agencies the powers they say they need to quickly track suspect communications. The two officials also must assess the government's compliance with the law and make periodic reports to the House and Senate Intelligence committees.
For the new attorney general, the most significant issue will be this: He or she must demonstrate to the court that normally issues intelligence surveillance warrants how the government determines that a "target" is actually located outside the United States and thus is out of reach of the warrant process. In effect, the attorney general must not only keep the law alive but also personally guarantee that the government isn't violating it.
Before the summer recess, Democrats said they would quickly renew discussions over the FISA legislation. The prospect of confirmation hearings now adds an undeniable wrinkle to this complicated debate. The nominee's position on warrantless surveillance could be a litmus test for some senators, and key lawmakers have already made clear they want a nominee devoid of any whiff of Bush cronyism.
"The first loyalty of the next attorney general must be to the law, not the president," said Sen. Russell Feingold, D-Wis., a member of the Judiciary Committee and one of the staunchest opponents of the NSA's surveillance program.
Strengthen FBI Counter-Terrorism Operations
The White House has consistently emphasized the terrorist threat to the United States posed by the group Al Qaeda in Iraq, but it is the intelligence community's consensus that a resurgent Al Qaeda, based in Pakistan, is perhaps the most formidable enemy. The terrorist group "has protected or regenerated key elements of its homeland attack capability," to include a "safe haven" in Pakistan's federally administered tribal areas, according to a National Intelligence Estimate released in July. "Although we have discovered only a handful of individuals in the United States with ties to Qaeda senior leadership since 9/11, we judge that Al Qaeda will intensify its efforts to put operatives here," the estimate states.
The Justice Department and the FBI have been operating under that assumption for years and are ramping up their efforts to track suspected terrorists who are already in the United States. The new attorney general, in concert with the FBI director, will have to secure the necessary resources and fend off charges that the agencies are mounting domestic spying campaigns.
Specifically, the bureau wants more money and positions for domestic terrorist-tracking programs, including developing a center that would use advanced technology and so-called data-mining tools. The National Security Branch Analysis Center would conduct "bulk data analysis, pattern analysis, and trend analysis" in support of the FBI's intelligence and counter-terrorism efforts, according to the bureau's fiscal 2008 budget request.
The new center, as well as other domestic counter-terrorism initiatives at the FBI and Justice, will further stir lawmakers who are hostile to the administration's forays into domestic intelligence. The attorney general will have to be a credible and forceful proponent for increased efforts to hunt and capture terrorists, activities that, by their very nature, could undermine Americans' civil liberties and privacy.
As one of the chief legal architects of the administration's warrantless surveillance program, Gonzales served as a reminder to many that the White House had disregarded some of the basic checks and balances meant to keep the line between intelligence-gathering and law enforcement functions from blurring. The new attorney general will have to convince lawmakers that expanded domestic surveillance powers are not only necessary to prevent acts of terrorism but also will not turn law enforcement agencies into national secret police forces.
Modify Detainee Policy
Gonzales was a key architect of the legal house of cards holding prisoners in the war on terrorism. With both the Supreme Court and Congress preparing to once again attack its foundation, his successor will have a tough task in either riding out the coming tremors or putting detention on more stable ground.
In late June, the Supreme Court reversed itself and agreed to hear the case of Guantanamo detainees who are asking the Court for habeas corpus -- the right to stand before a judge and question their detention -- and for judicial answers about who can be held as an enemy combatant. The unprecedented change-of-mind left Court-watchers anticipating another setback for the Bush administration.
Clement, soon to be acting attorney general, may be able to mitigate the expected damage while waiting for a permanent successor. As solicitor general, it is Clement who argues the government's cases before the Supreme Court. "He recognizes the serious prospect of another rebuke coming from the Supreme Court," says Thomas Goldstein, head of Akin Gump Strauss Hauer & Feld's Supreme Court practice. As a caretaker attorney general, Clement won't be making radical changes. But he will be in a position to argue internally that if the administration and Congress could agree on a legislative framework granting detainees more rights, the administration would have a stronger hand in court.
In Congress, the debate over detainee rights will return to the floor in September when the Senate takes up the Defense authorization bill. The measure would give more rights to detainees, and proposed amendments would restore habeas corpus to them or close Guantanamo altogether. In addition, some members would like to revisit the CIA's interrogation practices for detainees. In July, Bush issued an executive order outlining how far CIA interrogation techniques can go; the administration says it complies with Geneva Conventions on prisoners. But the military's top uniformed lawyers have expressed concerns with the legal interpretations of the order. Two proposed bills would instead make the CIA comply with the military's guidelines on interrogation techniques.
Gonzales was a staunch opponent of reformers, including the secretaries of State and Defense, who want to close Guantanamo and find a new, diplomatically palatable solution for prisoners in the war on terrorism. His successor will have to decide whether to follow in his footsteps or find a new path.