With health care dominating the headlines, it was easy to miss the unfolding drama between Congress and the Obama administration about the legal war on terror. The most recent installment was a remarkable and belated five-page letter from Attorney General Eric Holder to Rep. Chuck Grassley, R-Iowa, acknowledging that at least nine attorneys in the U.S. Department of Justice represented terrorist detainees before joining the Obama administration.
Why is this a problem? Let me count the ways.
First are actual and perceived conflicts of interest, which attorneys are always obligated to avoid. The problem is not that they represented detainees - everyone deserves a defense - but that they are now on the other side. When this happens, attorneys must recuse themselves and avoid handling, or ideally even advising on, the matter. Unfortunately Holder's incomplete response still didn't clarify the role of these nine attorneys in Justice Department terror policies and prosecutions.
Second is the appearance of bias or an agenda, that the hens have taken over what is supposed to be the foxes' den. The Department of Justice is supposed to be prosecuting terrorists, not coddling them. What are we to think if the organized crime unit brings in nine mob lawyers? At least one of these nine was with a human rights advocacy group and has no prosecutorial experience. For an administration that preaches pragmatism and not ideology, it's at least a question mark, if not a black mark.
Close behind come questions of transparency. President Obama set a high bar here, promising the most open and transparent administration in history. Congress asked for this information three months ago, and Holder said he'd consider it. Yikes.
Three months later, he provided an incomplete letter, not including all the divisions of his department, as had been requested, nor did he note attorneys that came from law firms that handled such cases. This creates more political smoke that the administration does not need and raises further questions about whether Holder is really up to this job.
Finally, and perhaps most important, it adds to the growing concern in Congress and among the public that the Obama administration isn't handling the legal war on terror properly. A recent CNN Poll shows growing disapproval of this, with those disapproving of the handling of the Christmas bomber, for example, now exceeding those who approve, 47 percent to 45 percent. Like cooking without a nonstick pan, these legal problems are starting to accumulate.
First came the promise to close Guantanamo, only to find that senators don't want detainees in their home states. Then granting Miranda rights to the Christmas bomber, rather than taking him before a military court where such rights do not automatically apply. Bringing Khalid Sheikh Mohammed to New York for a civilian trial, at a projected cost of $200 million for security alone? What would they do if the United States actually caught Osama bin Laden: read him his rights and give him a show trial in Washington, D.C.?
Who's making these decisions? That's what Congress wanted to know and I'm afraid we're only beginning to find out.