Obama Faces Legacy of Lawlessness at Justice

Friday, January 02, 2009 at 6:00 am
Former Attorney General Alberto Gonzales (WDCpix)

Former Attorney General Alberto Gonzales (WDCpix)

After 29 years enforcing the civil rights laws at the Department of Justice, in 2002 Richard Ugelow was abruptly transferred from his position as deputy chief of employment litigation to an administrative job in the civil division, which defends the government against, among other things, claims of civil rights violations. Ugelow was just one of many highly experienced justice department lawyers who, beginning in the early years of the Bush administration, were transferred, demoted or otherwise pushed out of their positions at Justice because their aggressive enforcement of federal laws didn’t match the new administration’s conservative ideology.

Matt Mahurin

Illustration by: Matt Mahurin

That’s just one of the many serious problems at the Department of Justice that the incoming Obama administration will have to rectify, say former Justice Department employees, law professors and civil rights advocates. As internal government reports and congressional hearings have documented, the Bush Justice Department over the last eight years expelled or ignored attorneys that it didn’t agree with and replaced them with inexperienced lawyers hired more for their ideology than their qualifications. Many of those promoted and implemented conservative agendas that in some cases turned out to be illegal. Those lawyers who were given career positions can’t simply be pushed out by a new administration, however – and they could make it difficult for Obama to implement a new agenda.

Under President Bush, “there was a total disregard for the career attorneys,” said Ugelow, who now teaches at American University’s Washington College of Law. “When they initially came in they stopped all enforcement activities. The administration came in with the attitude that we’re not going to use the courts to enforce the law.”

The result, says Jon Greenbaum, a former senior attorney in the Voting Section of the Civil Rights Division at the Justice Department, was “you had people in charge who didn’t know what the heck they were doing. At the civil rights division, you had some of the people who were most hostile to civil rights running things.”

In fact, as an inspector general’s report revealed, potential new hires during the Bush administration were disqualified for jobs if in the past they’d worked for Democrats or organizations with “liberal affiliations” – such as civil rights groups. The inspector general concluded that “political or ideological affiliations were used to deselect candidates” applying for entry-level attorney positions and internships.

The Inspector General is still investigating a separate set of allegations that DOJ lawyers hired attorneys for the civil rights division based on ideology in violation of the civil service laws.

Not surprisingly, during the Bush years, civil rights enforcement on behalf of minorities dropped dramatically. From 2000 to 2006, for example, the Equal Employment Opportunity Commission referred more than 3200 individual charges of discrimination to the civil rights division, yet the division filed only seven cases (pdf) on behalf of African-Americans or Latinos. And of only seven cases (pdf) alleging systemic racial discrimination brought by September of 2007, two were reverse discrimination cases — alleging systemic discrimination against whites.

The department’s enforcement of the Voting Rights Act, meanwhile, essentially came to a halt, says Greenbaum, as political appointees refused to bring new voting rights cases recommended by longtime career attorneys and at times ignored their legal judgments.

In 2003, for example, voting division lawyers and analysts unanimously warned that a Texas redistricting plan spearheaded by Republican Rep. Tom Delay would violate the voting rights act by by diluting black and latino voting power. They were overruled by political appointees. In 2006, the US Supreme Court held that the redistricting plan was unconstitutional.

Similarly, when Georgia sought to pass a voter ID law, career staff objected that the law would effectively discriminate against minority voters, many of whom would not have the kinds of identification cards required. “Again, the front office just didn’t care. They pretty much ignored it,” says Greenbaum, now director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law. Although Justice Department senior officials signed off on the Georgia law, it was eventually ruled unconstitutional by a federal judge, who likened the ID requirement to a poll tax from the Jim Crow era.

Obama will soon have the opportunity to hire his own political appointee to lead the Civil Rights Division. Still, “[t]he overall damage caused by losing a large body of the committed career staff and replacing it with persons with little or no interest or experience in civil rights enforcement has been severe and will be difficult to overcome,” Joseph Rich, the former chief of the voting section at Justice from 1999 to 2005, told a congressional committee in 2007.

And it’s not just the civil rights division that’s been damaged, lawyers warn. Attorney General Alberto Gonzales’s dismissal of seven US Attorneys in 2006 allegedly based on ideology is now under investigation by a special prosecutor. And at the Office of Legal counsel, Assistant Attorney General Jay Bybee and his deputy John Yoo advised the president in 2002 that he had unprecedented executive authority to ignore federal and international law. Those opinions – later sharply criticized and partly withdrawn by Jack Goldsmith, Bybee’s successor — led President Bush and his senior officials to authorize the torture, abuse and humiliation of detainees in violation of the Geneva Conventions and US anti-torture law, and to permit warrantless wiretapping of US citizens. Civil rights advocates are now calling for criminal investigations into those who authorized those acts – including the lawyers.

Looking forward, advocates and former career lawyers hope the new Obama administration will change that. But it won’t be easy. Although Obama will make new political appointments, such as the heads of the Office of Legal Counsel and of the civil rights division, he’s stuck with many of the career attorneys that some say are unqualified.

“You can’t get rid of the career people,” says Michael Ratner, president of the Center for Constitutional Rights and professor at Columbia Law School. “They have civil service protections. To fire them for political reasons would be the equivalent of hiring them for political reasons. On the other hand you don’t have to let them run their politics on the case.”

In fact, say legal scholars and advocates, the most important change Obama can make at Justice is to eliminate ideology from decision-making and return the department to its tradition of fairly enforcing the law.

“For me, the structural issue is the independence of the office of legal counsel,” says Ratner. “OLC got utterly maligned and controlled by [Dick] Cheney and [David] Addington. So restoring the office of legal counsel to an independent voice is absolutely crucial.”

Advocates such as Ratner are pushing for prosecutions of Cheney, Addington, Rumsfeld and others, insisting that only by prosecuting such abuses can the new justice department prevent their recurrence. Obama has not said whether he will initiate a criminal investigation, although he hasn’t ruled it out.

But there are also actions a new administration can take short of prosecution that could go a long way toward restoring respect for the rule of law, say legal scholars.

Making all the legal memos public is an important first step, said Sharon Kelly, a campaign manager at Human Rights First. The new administration should also review all of those memos and refute those that promote an unlawful view of unbridled executive power, says Ratner, who notes that although Goldsmith refuted the infamous “torture memo” written by John Yoo, he’s “never refuted the broad views of Yoo that the executive can do whatever is necessary to protect the country in war. I would want to see the justice department pull in the broad statements by affirmatively saying the president cannot violate the law in the name of national security.”

As for the civil rights division, it will have to get the lawyers hired under the Bush administration to begin vigorously enforcing the civil rights laws. In the area of voting rights, for example, the 2010 Census data is expected to lead to a flood of proposals for redistricting in 2011 and 2012, many of which will require review under the Voting Rights Act.

Ugelow is optimistic: “I’m hoping they’ll put somebody in charge who will have some gravitas and be well respected and appoint subordinates around him or her who will set a tone where enforcement is the order of the day.”

Other than Eric Holder, Obama’s pick for the next attorney general, the president-elect hasn’t yet announced his choices for who will lead key divisions at Justice. But David Ogden, former assistant attorney general for the Civil Division under President Clinton and now a partner at the law firm Wilmer Hale, is considered a likely pick for Deputy Attorney General. Ugelow said he thinks Holder will be “terrific” and that Ogden “has a wonderful reputation as a straight shooter.”

Washington lawyers say that Tom Perez, a former Justice Department lawyer, now secretary of labor in Maryland and serving on Obama’s transition team, is a possible pick for the Civil Rights division.

Potential leaders for Office of Legal Counsel include Martin Lederman, a former OLC attorney now teaching at Georgetown University Law School, and Dawn Johnsen, a law professor at Indiana University and former acting assistant attorney general of the office. Both are on Obama’s transition team.

“The next AG is going to have his work cut out for him,” warns Kelly of Human Rights First. “The Department of Justice needs strong leadership to put things back on track. Hopefully, it will go back to being a place more interested in upholding the law than in finding ways to skirt it.”

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Comment posted January 2, 2009 @ 9:26 am

Interesing story. But some of these career folks abused their DOJ power and trampled people's constitutional rights. They allowed themselves to be used by liberal groups and other government agencies as attack dogs, or Abu Ghraib dogs (just used to scare you). When I read the above it makes me think that maybe we will just swing back and forth to each extreme with each administration. Very sad.

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Comment posted January 2, 2009 @ 12:08 pm

I hope he appoints David Iglesias to something. Despite being a Republican US Attorney, he stood up for rule of law against politicization by his moronic higher ups.

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Pingback posted January 2, 2009 @ 4:01 pm

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Comment posted January 2, 2009 @ 6:03 pm

it's good to have the issues spelled out clearly . Obama will have an opportunity to ” right ” things and as a lawyer himself he should know how to implement a some of the changes needed to have our civil rights protected without going overboard and empwering criminals ot terrorists.

The DOJ: A Department Without Justice « No Time for Trivia
Pingback posted January 3, 2009 @ 5:25 am

[...] Or rather, a department full of ideologues and hacks that are more party tools than servants of justice.  This is part of the legacy that GW Bush has left us.  I have watched the struggle within the Department of Justice for eight years as Bush eviscerated it from attorneys who were committed to doing what their divisions were intended to do.  I found it amazing that the Civil Rights division was gutted of attorneys that fought for the rights of minorities and replaced by partisan hacks whose job was to prevent the investigation and prosecution of civil rights abuses.  Sadly, many of those put in place by Bush will remain and be cogs in the wheels of justice still. Obama Faces Legacy of Lawlessness at Justice [...]

Comment posted January 3, 2009 @ 6:56 am

Yes, not only did Bush politicize the DOJ and emasculate it's Civil Rights Division, but he set a very dangerous precedent that will not be forgotten. Bush is a disaster that Yale, Harvard and other schools awarding him degrees should be ashamed of!!

News From Underground: Obama and Bush/Cheney’s DoJ
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Comment posted January 3, 2009 @ 11:23 am

Why can't Obama do what Bush did, move the conservative ideologue (bums) to crappy posts out in the boondocks? Or just make anyone hired after 2000 re-apply for the job.

Richard Lee
Comment posted January 3, 2009 @ 5:35 pm

Reestablishing justice in the Republican Neo-con corrupted Justice department will probably be Obama's most important task. He will uinfortunately still have at least 5 agenda driven reactionary Supreme Court justices to deal with along with an obstructionist Republican minority in Congress. Add to that the sycopantic, if not cowardly, Senate and House Democratic leadership and his own Blue dog Establishment Cabinet, and it is unlikely he will accomplish much other than doing any more damage than has been done in the last 30 years. lOur only real hope is to change the voting process (as well as the machines) to a ranked type of runoff process and hope real conservatives particiapate. The Duopoly only serves the special interests of the rich.

born free
Comment posted January 4, 2009 @ 12:51 am

= every bushie in a career position can be fired for failure to perform according to their job descriptions. just document everything and in maybe 6 months there will be enough negative to get them fired, especially with a sympathetic merit systems protection board.
= as a previous comment suggested, the president can move the 'position' these people occupy to pisek, nd or point barrow, alaska. they would then have to transfer or resign. those are also 'civil service protections.' the benefit of moving the positions is that it is a 100% administrative, executive decision, not subject to review outside the 'system'.
= anyway, that's what i would do, speaking as a 36+ yr federal retiree. \ born free

Comment posted January 4, 2009 @ 9:54 am

BushCo did the same thing in other agencies. I was pushed out of Interior for complying with the law in my position. Others previously in my position cited the same problems with management and were also driven out. the loyalists were promoted to higher positions, for which they were clearly unqualified. They now head regional offices, or are the agency chief.

I agree with Born Free, know-nothing ideologs can be weeded out by requiring adherance to performance plan, which includes complying with the nation's laws. Those who were illegal can be dropped for illegal acts. I hope federal attorneys can also be dropped for ethics violations.

Obama staff can review those recently seperated for no good cause, and rehire them. Put them in charge of the political hacks….Also, review those employees who are placed on administrative leave indefinitely (agency Siberia) for having too much ethics or ideological reasons. Reinstate them.

Bush set out to destroy the government, and did a pretty good job, really. His friends benefit and looks like he will get off free, grinning like a chimp all the way.

Tom Quinn
Comment posted January 4, 2009 @ 11:22 am

If the new administration expects would-be whistleblowers to disclose violations of law and danger to public safety and national security, it should give immediate relief to the current whistleblowers who are enduring constant subtle retaliation while at their current job, resigned under duress, or were fired.

Comment posted January 4, 2009 @ 1:18 pm

Hey, why exactly were you pushed out of interior? That agency was notorious for violating the law — I'd love to hear more. Post or e-mail me about it, please.

Comment posted January 5, 2009 @ 12:23 pm

Sent you email. Sometimes I disagree with Scott Horton, who says DOJ is the most corrupt federal agency. I nominate DOI as at least close second!

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Pingback posted January 5, 2009 @ 1:18 pm

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Comment posted January 5, 2009 @ 8:23 pm

Sent you email. Sometimes I disagree with Scott Horton, who says DOJ is the most corrupt federal agency. I nominate DOI as at least close second!

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