Justice Dept. Under Obama Is Preparing for Doctrinal Shift in Policies of Bush Years http://www.nytimes.com/2009/02/02/us/politics/02justice.html?nl=pol&e... WASHINGTON — The Justice Department, probably more than any other agency here, is bracing for a broad doctrinal shift in policies from those of the Bush administration, department lawyers and Obama administration officials say.
Eric H. Holder Jr., whom the Senate is expected to confirm on Monday as the nation’s 82nd attorney general, plans to take the oath of office that evening to demonstrate a quick start, which will include overseeing the creation of a new detention policy for terrorism suspects. Mr. Holder will have to contend with that and other issues rapidly. Lawyers inside and outside the department say he will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future. “This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department. Under Mr. Obama’s recent executive order, the Justice Department will be required to review the files of the 245 detainees at Guantánamo and draw up a proposal on their fate that will fulfill the pledge to close the facility. “The idea that it has to be closed within a year will drive the timing of many things,” said the Obama administration lawyer, who spoke on the condition of anonymity because Mr. Holder had not yet taken office. Mr. Holder will also have to make several quick decisions because of court-imposed deadlines. And he will have to do so with many of the senior positions in the department not yet filled. The department has to decide by next month whether it will reverse course from the Bush administration, which had repeatedly invoked the so-called state secrets doctrine to shut down legal challenges to several lawsuits dealing with national security. Officials also face a February deadline on whether to extend habeas corpus rights to detainees at Bagram Air Base in Afghanistan. “I can’t imagine a more challenging time to come in as attorney general,” said Walter Dellinger, a legal scholar who was an acting solicitor general in the Clinton administration. “The number of legal issues left behind to be resolved is really staggering.” In the Justice Department, there is considerable restiveness as employees await new direction. The civil rights division, which had been reshaped in a conservative direction under President George W. Bush, is ripe for sharp change, administration officials said. “Many of us cannot wait for the changes,” said one career lawyer in the division, who spoke on the condition of anonymity to describe the atmosphere. The lawyer said there were expectations that the division would be restored to its historic role of largely enforcing prohibitions against racial and ethnic discrimination. Under the Bush administration, the division significantly diminished its involvement in those areas and shifted resources to fighting instances of religious discrimination. Several Bush political appointees in the civil rights division have recently resigned. But some of the Bush policies were enforced with alacrity by nonpolitical career lawyers who saw their careers flourish. “A lot of us are waiting to see what happens to them now,” the lawyer said. The shift is expected to be more stark than that of a transition from one party to another. It may resemble the start of the Reagan administration, with its promise of wide philosophical change to be put into effect by a cadre of enthusiastic outsiders and academics, whose views on how to run the department have simmered after years of watching from the outside. The case dealing with the state secrets doctrine, which allows the government to rebuff lawsuits by invoking national security concerns, involves al-Haramain Islamic Foundation. A federal trial judge in San Francisco ruled that the government could not invoke the doctrine to block a lawsuit by al-Haramain, which has asserted that the government illegally listened in on its conversations. The Bush administration used the doctrine to block more than two dozen lawsuits. In timing that was a bit of a surprise, the Justice Department lawyers who have handled the lawsuit filed a motion with the court an hour before Inauguration Day that held to the same position. Some Obama administration figures regarded the filing before midnight on Jan. 19 as a rear-guard action to make it more difficult to reverse course. The Justice Department has to file a new brief by Feb. 13. Jon B. Eisenberg, who represents al-Haramain, said the schedule meant that “Holder and company have to decide pretty quickly if they want to keep opposing this case with the state secrets doctrine.” The case also provides an opportunity to have a court assess the Bush administration’s domestic wiretapping program. The Justice Department under Mr. Holder would also have to take a stand soon in a case involving four former Guantánamo detainees who sued former Defense Secretary Donald H. Rumsfeld and others for damages they say they had suffered as a result of torture and religious persecution at the facility. In December, the Supreme Court revived the lawsuit and asked a federal appeals court to revisit its earlier action in dismissing the suit in light of the justices’ ruling that Guantánamo prisoners could challenge their detentions in federal court. The Supreme Court also granted the Justice Department a 30-day delay, until March 23, to say where it stood in the case of Ali al-Marri. The Bush administration has made the far-reaching claim that it may indefinitely hold Mr. Marri, a legal resident of the United States, on suspicion of terrorism in a military brig without charging him with a crime. The new administration is also supposed to decide by Feb. 20 what position to take on whether detainees at the Bagram prison in Afghanistan should be allowed to challenge their detentions in federal court, as Guantánamo detainees can. While the Justice Department has rapidly grown in recent decades to more than 110,000 employees, there are only about 150 spots for political appointees who will steer policy. Only about 21 have begun work. Several of the most senior of the political appointees require confirmation by the Senate, and Mr. Holder was the first to be --~--~---------~--~----~------------~-------~--~----~ Thanks for being part of "PoliticalForum" at Google Groups. 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