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The Decline of the Justice Department

Mukasey’s verdict on Holder.

Jan 31, 2011, Vol. 16, No. 19 • By JENNIFER RUBIN
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Former attorney general Michael Mukasey is not prone to hyperbole. He’s a former federal judge, a meticulous lawyer, and, as he proved in succeeding Alberto Gonzales, a skilled administrator who restored morale to a Justice Department demoralized by scandals (real or concocted). He is also obviously nonplussed by the performance of his successor, Attorney General Eric Holder. In a far-ranging interview, he candidly asserts that Holder’s conduct in several key respects has been “amazing.” That’s not meant as a compliment.

The Decline of the Justice Department

Gary Locke

Mukasey, who presided over the trial of the 1993 World Trade Center bombers, is as experienced as any American jurist when it comes to the war on terror. It is therefore significant that he finds Holder’s handling of national security matters worrisome. In August 2009, Holder authorized the reinvestigation of CIA operatives who had employed enhanced interrogation techniques on terrorist detainees. It had the feel of a witch hunt: Career prosecutors who investigated the interrogators under the previous administration had concluded there was no basis for a criminal prosecution. A year and a half later, the Holder reinvestigation is still dragging on. “I have to believe that the effect on people involved in national security is devastating,” says Mukasey, “in part because the cases were closed before.” Imagine the impact on a CIA operative who is told, “ ‘There is no basis for prosecution.’ And then someone shows up and says, ‘Not so fast.’ ”

Mukasey, moreover, finds it “amazing” that Holder “conceded he didn’t read the [career] prosecutors’ memo” that recommended against prosecution. He remarks ruefully that “in a sense that is comforting” to CIA employees that there was not something troubling in the memo. But, of course, it is small consolation that the nation’s chief law enforcement officer doesn’t bother to read relevant documents before making a decision with long-term policy implications.

Disarray on matters of national security has been a hallmark of the Holder era. Mukasey is disturbed by the writings and statements of James Cole, who was appointed deputy attorney general by President Obama on December 29, after the Senate went into recess, avoiding a confirmation battle in which those writings would have received scrutiny. Even after Congress passed the Authorization for Use of Military Force Against Terrorists in 2001, Cole insisted that fighting terrorists was a matter of law enforcement—akin to fighting drug dealers and other criminals—rather than national security. Mukasey sees “real problems” with this perspective, though he concedes that Cole’s “view seems to be his boss’s view and the president’s view.”

Of course, some of the hostility towards the war on terror at the Justice Department predates Holder’s tenure. The department’s Office of Professional Responsibility undertook a tendentious investigation of the work done by lawyers John Yoo and Jay Bybee on the legality of enhanced interrogation techniques when the two served in the Office of Legal Counsel during Bush’s first term. 

Mukasey relates for the first time the extent of the malfeasance. “We got the OPR report on December 23, 2008, when everyone was getting ready to leave town for the Christmas break, at the end of the administration, with a request to comment by January 5 so it could be released by January 12.” Mukasey and his deputy Mark Filip prepared a detailed letter enumerating the errors and misstatements in the OPR report, with the assurance that the letter along with the report would go to Congress. “When they sent the report, everything but the letter went up.” He says with incredulity, “They said releasing the report to Congress wasn’t making it ‘public.’ ” As for the original OPR report, he observes, “My take was that it was a hatchet job. They quoted one guy who wasn’t even a lawyer and someone who [had] represented John Walker Lindh [the American captured as an enemy combatant in Afghanistan]. They cited an unpublished opinion.” He says succinctly of the OPR report: “It was sloppiness combined with ill will.” After more than a year of additional inquest under Holder, Yoo and Bybee were finally cleared of wrongdoing by a career lawyer brought in to redo OPR’s work.

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