Eric Holder has been a disastrous attorney general. “Classic 101 Boobery” was how one Democratic operative memorably called his decision, now on hold, to try Khalid Sheikh Mohammed in a civilian court in lower Manhattan. Other blunders have piled up and the White House has been repeatedly embarrassed by his string of ill-considered decisions and gaffes. With the midterm elections approaching, it would not be surprising if Holder soon finds himself under the Obama bus, lying next to former Director of National Intelligence Dennis Blair. An interesting question is, then, who would be tapped as the next attorney general?
My choice would be David Kris, currently running the Justice Department’s national security division, who also served as a senior official at Justice from 2000 to 2003 under both Clinton and Bush. “Obama Picks Critic of Warrantless Wiretapping for Slot at Justice Dept.,” was the headline in the New York Times when Kris was named for his current job in January 2009. Having disclosed the NSA’s ultra-secret Terrorist Surveillance Program—and thereby compromising its effectiveness—the Times has tried hard to portray Kris as someone who believed the wiretapping was illegal, a violation of the Foreign Intelligence Surveillance Act (FISA).
Kris did indeed write a memorandum containing sharp criticisms of the legal arguments put forward by the Bush administration on behalf of the NSA wiretapping. But in the same memo, he readily acknowledged that FISA might itself trespass on the president’s constitutional authority as commander-in-chief. In fact, he allowed that even massive dragnet-style warrantless wiretapping might be legal under some circumstances, offering a ticking time bomb scenario in support of this controversial view:
If the government had probable cause that a terrorist possessed a nuclear bomb somewhere in Georgetown, and was awaiting telephone instructions on how to arm it for detonation, and if FISA were interpreted not to allow surveillance of every telephone in Georgetown in those circumstances, the President’s assertion of Article II power to do so would be quite persuasive and attractive to most judges and probably most citizens. The Constitution is not a suicide pact.
This is eminently sensible. Also eminently sensible—and worth being widely heard—are Kris’s remarks delivered last week at the Brookings Institution, explaining the use of law enforcement as a counterterrorism tool and examining the merits and demerits of using military commissions and civilian trials for trying al Qaeda terrorists.
Exceptionally among Obama appointees, Kris has the ideological coloration of an extreme pragmatist. We could do much worse in an attorney general. Under Eric Holder, we are doing much worse.
Gabriel Schoenfeld is the author of Necessary Secrets: National Security, the Media, and the Rule of Law.