No Comment — February 2, 2009, 9:02 am

Reversing Course at Justice

Neil Lewis of the New York Times takes a look at what we can expect from a Justice Department headed by Eric Holder, who is likely to be confirmed as attorney general later today. The findings: the laws will be enforced, the Constitution will be considered binding, the government will take its commitments to the global community seriously. The Bush Administration’s guiding principle of omertà will fade in favor of public accountability for the acts of public servants. The Civil Rights Division will actually resume enforcement of civil rights legislation. The Office of Legal Counsel will cease directing criminal conspiracies and will instead issue level-headed legal advice driven by respect for the rule of law. Lewis points to some of the litigation positions in place that Holder will want to reconsider. The state secrets doctrine, for instance, has existed at least since the administration of Thomas Jefferson. But roughly 90 percent of all in-court invocations of this doctrine from the founding of the American Republic through today occurred during the Bush Administration. Something is seriously wrong with this picture, since the claim of state secrets now almost invariably occurs to cloak some embarrassing, and often criminal, conduct in which the administration engaged. If Holder is serious about the disinfectant benefits of sunshine, he will want to start reversing this pattern of abuse. One instance involves victims of warrantless surveillance by the Bush team, which was almost certainly felonious. Bush Administration lawyers rushed to try to block the suit in the final hours before Bush left office:

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.

As Eric Holder enters the smoldering wreckage of the Justice Department, the challenges he faces will require extraordinary energy and exertion. He will enter with only a few hundred political appointees, while far larger number of “loyal Bushies” have been burrowed (illegally, as the Department acknowledges in its own internal probe) deeply into the institution. The first struggle on the horizon is likely to be a struggle within Justice for the institution’s soul. I expect sabotage and disinformation to flow freely for several months. Hang on for the ride.

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