Also published at my web magazine, The Public Record.
One of the top challenges facing Barack Obama’s Justice Department will be striking a balance between fighting terrorism and protecting individual civil liberties, says a recent memo from the department’s inspector general.
That responsibility likely will fall on Attorney General-designate Eric Holder, whose appointment was announced by President-elect Obama on Monday. At a news conference in Chicago, Holder said the two priorities were not mutually exclusive.
“It is incumbent upon those of us who lead the department to ensure not only that the nation is safe but also that our laws and traditions are respected,” said Holder, a deputy attorney general during Bill Clinton’s presidency.
“There is not a tension between those two. We can and we must ensure that the American people remain secure and that the great constitutional guarantees that define us as a nation are truly valued.”
The Justice Department’s Inspector General Glenn Fine listed “the continuing challenge of balancing aggressive pursuit of [the department’s] counterterrorism responsibilities with the protection of individual civil rights and civil liberties” among the top 10 critical issues in 2009.
Under President George W. Bush, the Justice Department – along with the FBI and the CIA – sidestepped long-standing civil rights laws in their zeal to pursue radical Islamic terrorists. The Bush administration used the 9/11 attacks and the possibility that terrorists would strike the U.S. again to get Congress to support the administration’s policies.
In December 2005, the New York Times revealed that immediately after 9/11 Bush authorized the National Security Agency to eavesdrop on Americans’ phone calls and e-mails without a court order.
Bush said the program was aimed specifically at intercepting telephone calls from al-Qaeda associates outside the U.S., although other evidence indicates that the calls of innocent citizens were eavesdropped on.
According to Fine’s memo dated Nov. 14, the so-called “terrorist surveillance program” is just one example of how the Justice Department, in close coordination with the White House, may have violated the Constitution.
In the memo, Fine also confirmed that his office has been investigating the Justice Departmen’s association with the program.
“The [Office of Inspector General] is reviewing the department’s involvement with the National Security Agency program known as the ‘terrorist surveillance program,’” the memo said. “This ongoing review is examining the department’s controls and use of information related to the program and the department’s compliance with legal requirements governing the program.”
FBI Abuse of Powers
Other Justice programs are also under scrutiny, including the FBI’s abuse of “exigent letters,” a tactic the agency is supposed to use to obtain information from individuals and businesses only under emergency circumstances.
Fine said his office is close to completing an investigation into the matter to determine “who was responsible for the use of exigent letters and other improper requests for telephone records.”
Thus far, Fine has determined that the FBI cited false or unjustified reasons to support its use of more than 700 “exigent letters” in obtaining telephone billing records from three communication service providers.
“In many cases there was no exigency at all,” Fine’s memo said. “We concluded that these exigent letters circumvented the requirements of the Electronic Communications Privacy Act and violated Attorney General Guidelines and internal FBI policy.”
The FBI stopped using “exigent letters” after Fine issued a 200-page report in March 2007 on the FBI’s abuse of these national security letters. But his office jas continued to investigate.
The next Attorney General also may have to overhaul the FBI’s terrorist watch list. Fine said an examination of the program uncovered that the FBI failed to remove names of people who weren’t under suspicion.
“Our audit found that FBI case agents did not always update watch-list records when new information became known and that the FBI did not always remove watch-list records when it was appropriate to do so,” Fine said.
However, perhaps the most daunting challenge Holder will face is restoring confidence in the Justice Department after a series of scandals under former Attorney General Alberto Gonzales, including the firing of nine U.S. Attorneys in 2006 for partisan political reasons.
“An ongoing challenge is the need to restore public confidence in the integrity of department operations in light of concerns about politicized hiring in the department,” Fine said.
“The immediate challenge for the Attorney General and the department’s leadership is to ensure that the serious problems and misconduct we found regarding politicized hiring for career positions and the dismissal of U.S. Attorneys do not recur,” Fine said.
“The department’s removal of the U.S. Attorneys and the controversy it created severely damaged the credibility of the department and raised doubts about the integrity of department prosecutive decisions.”
Hope for Holder
David Iglesias, the former U.S. Attorney for New Mexico who was one of the nine federal prosecutors fired, said in an interview that Holder has already surpassed Gonzales because he was a prosecutor and that alone will buy him credibility with U.S. Attorneys.
“It buys a lot of credibility that the Attorney General has stood in the shoes of lots of career federal prosecutors and career U.S. Attorneys.” Iglesias said. “Gonzales had never been a prosecutor. …
“To have someone leading the premier law enforcement agency in the U.S. who has never prosecuted cases I think really set them up for failure. Gonzales [and some of his subordinates] never really understood that U.S. Attorneys have to be independent.”
Patrick Leahy, chairman of the Senate Judiciary Committee, said Holder’s experience would help repair the department’s image.
“Rebuilding morale and public confidence in the Justice Department continues to be a top priority, and Eric Holder’s extensive experience and knowledge of the department will serve him well as he faces many challenges as Attorney General,” Leahy said.