The Wages Of Delay

The report that Barack Obama's Justice Department was siding with the Bush Administration in the Al Haramain case was a little disconcerting. In Al Haramain, an Islamic charity being tried for alleged funding of terrorism received a transcript of a phone call that the government secretly eavesdropped on - FROM GOVERNMENT LAWYERS. When they counter-sued for illegal wiretapping, they were told that they had no standing because the document they received accidentally was classified. Kafka would be proud. A US District Judge is attempting to get a copy of the document and he reinstated their lawsuit against the government. But as emptywheel notes, saying that the Obama Administration is calling for a stay of the court case pending appeal is a bit wrong:

As al-Haramain complains in its response, the Bush Administration appears to have deliberately held their appeal until "64 minutes before midnight on the last day of the Bush presidency." Two days later, Holder's nomination was held up in a highly unusual move. And the next day, a group of lawyers submit "Obama's" support for Bush's motion for a stay pending appeal. The lawyers defending the case remain largely the same: Douglas Letter, Joseph Hunt, Anthony Coppolino, and Alexander Haas, with only Gregory Katsas and John O'Quinn replaced by Michael Hertz. But Michael Hertz--who is on this motion as the Acting Assistant Attorney General but who was Deputy Assistant Attorney General under Bush--seems to be a loyal Bushie. (Here he is arguing against a bill that would make it easier to sue contractors based on information supplied by government whistleblowers.) In other words, the lawyers making this argument appear to be a team of Bushies.

In fact, to give an idea of the degree to which Obama's participation in this motion is negligable, check out the docket: they originally filed this with Bush's name, and not Obama's, on the docket.

So that raises a giant question: Given that the Republicans are stalling Holder's nomination even as they submit this motion, to what degree is this just the output of dead-enders in Bush's DOJ? Yes, I'm sure if Obama didn't support this in principle, he'd be telling Vaughn Walker about that right now. But it does not appear to be the product of the Obama DOJ because that DOJ simply doesn't exist yet. (Al-Haramain even cites Holder and Dawn Johnsen dismissing Bush's claims to the unitary executive to argue Obama would think differently of Vaughn Walker's ability to require the Administration to hand over the document.) But this was implemented, anyway, by Bushies, not Obama people.

Furthermore, given that Obama just appointed a critic of warrantless wiretapping to be the new head of the national security division at the Justice Department, I don't think we can fully say which way the Administration will go on this particular case. Obama voted for last year's FISA bill, so he certainly needs to be pushed on this issue, but I wouldn't make much of this particular ruling, other than to note that Obama's Justice Department officials need to be confirmed without delay. The beginnings of Administrations have this hybrid approach where remnants of the previous regime are still making policy decisions despite the new regime's installation. I don't know what can really be done about that - I still want Congressional scrutiny of cabinet officials - but it is a problem.