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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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Mukasey is also critical of the Obama administration’s failure to devise a new legal framework (as the Supreme Court invited Congress and the president to do in the -Boumediene case) to try unlawful combatants. “Right now we have a binary choice,” he says. “There are military commissions or civilian trials.” He continues, “We need something to try [war on terror detainees]. It’s not that I find indefinite detention offensive,” noting that there is ample legal and historic precedent for holding combatants until the end of hostilities. “We never know what the duration of hostilities [will be]. That is a bogus issue. The Germans when they marched into Poland didn’t have a sign saying the war would be over in 1945.” However, “what is not a bogus issue,” he says, is the need for victims to see perpetrators tried and punished. 

But while pursuing investigation of CIA operatives, Yoo, and Bybee, Holder’s department has yet to get around to devising a legal framework suitable for the prosecution of Islamic terrorists in American custody.

With regard to the New Black Panther party controversy, incoming House Judiciary chairman Lamar Smith has dispatched a letter to Holder demanding answers to questions and documents relating to political appointee Julie Fernandes’s instructions to civil rights attorneys not to pursue voter-intimidation cases or enforce provisions of federal law designed to prevent fraud against black defendants. Mukasey is flabbergasted that the attorney general would declare in a New York Times interview that in effect “there is nothing to see.” Mukasey says, “I can’t see how he would bring himself to say such a thing. There are investigations pending”—by the Justice Department’s inspector general and Office of Professional Responsibility. The case against the New Black Panthers for intimidating voters at a Philadelphia precinct in 2008 was already won when Holder’s team ordered the charges dropped; famed civil rights attorney Bartle Bull deemed it “the most blatant form of voter intimidation I’ve ever seen.” Says Mukasey, with a measure of indignation, “It seems to me you don’t whitewash such a thing.”

This does revive the theme of “politicization,” an accusation hurled at the Bush administration before Mukasey’s November 2007 arrival at the Justice Department. Mukasey makes a key distinction: “The president runs on policies and has the right to set them. There is a lighter hand for the Justice Department because here there is an obligation to enforce the law.” That said, he cautions, there is no place for political interference in specific cases. Under his tenure, he strictly limited White House contact with Justice Department lawyers. “There was no calling from the administration to argue about individual cases.”

However, it is precisely this sort of political interference and contravention of career lawyers’ work that has become a fixture in Holder’s Justice Department. Recalling that the Office of Legal Counsel had found it unconstitutional to extend voting rights to the District of Columbia, Mukasey remarks, “Holder went to the solicitor general” to shop for a contrary view.  “That’s not the purview of the solicitor general,” Mukasey says. But it is the way a partisan attorney general evades legal decisions he doesn’t like.

Indeed, Holder’s civil rights division appears wholly politicized. In addition to the New Black Panthers case, Mukasey cites the recent filing by the Justice Department of a lawsuit against the Berkeley, Illinois, school district alleging that it violated the Civil Rights Act of 1964 by failing to reasonably accommodate the religious practices of a Muslim teacher who wanted to go on the hajj. “This was not a one day thing,” he says, referring to the teacher’s demand for an extended sojourn in Saudi Arabia.

It is ironic, in retrospect, that the Obama administration two years ago entered office vowing to respect the work of career attorneys at the DOJ, to avoid politicization, and to oversee the impartial administration of justice. The closest we have come to the impartial administration of justice in recent years was under Mukasey’s tenure, when he eliminated White House meddling and allowed career attorneys to perform their jobs. No wonder he is dismayed with his successor’s performance.

Jennifer Rubin writes the Right Turn blog for the Washington Post.

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