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Appointments Are the President's Prerogative

A Commentary By Debra J. Saunders

Friday, March 05, 2010

In November, Sen. Chuck Grassley, R-Iowa, asked Attorney General Eric Holder to provide him with a list of Department of Justice political appointees who had represented enemy-combatant "detainees, or worked for organizations advocating on terrorism or detainee policy." The DOJ has not sent him the names.

But on Tuesday, a group called Keep America Safe -- Liz Cheney is a board member -- ran ads that proclaimed, "Americans have a right to know the identity of the al-Qaida 7" at the "Department of Jihad." Later Fox News reported the identities of all the attorneys now known as the DOJ9.

I am of two minds on this story.

On one hand, Grassley properly argues that the public has the right to know "who advises the attorney general and president" on national-security matters.

In that polls have shown that a solid majority of Americans do not support the Obama freshman-year approach to terrorism -- promising to close Guantanamo Bay, charging enemy combatants in civilian criminal courts rather than military tribunals -- it can hardly be a surprise that Holder does not want to shine the spotlight on attorneys who opposed Bush administration prosecutions of accused agents of terrorism.

But as Grassley spokesperson Beth Pellett Levine noted, Obama and Holder promised, but have not delivered, transparency -- so that an elected official learned the answer to his request, not from Holder, but through Fox News.

As for the "al-Qaida 7" ad, Levine said Grassley had "nothing to do with the ad."

Smart answer. "Al-Qaida 7" is a cheap-shot label for the DOJ9. It may not constitute McCarthyism, as some critics have charged, but it is a smear.

Debra Burlingame, another Keep America Safe board member whose brother was the pilot of American Airlines Flight 77 hijacked on 9/11, told me, "We don't mean to suggest that these attorneys are al-Qaida operatives, but they are enabling them."

Let me be clear. I don't like that Obama appointed Jennifer Daskal, formerly of Human Rights Watch, to be the DOJ's national security division attorney -- given her hostility to military tribunals. Ditto now Principal Deputy Solicitor General Neal Katyal's past defense of al-Qaida member Salim Hamdan in a case that led to the U.S. Supreme Court overturning the military tribunal system, which Congress later reauthorized.

But, on the other hand, Barack Obama won the White House and that gives him the right to hire whomever he wants -- however misguided their views are.

Or as former Bush attorney and current UC Berkeley law Professor John Yoo noted, "The president can and should put into place political appointees who agree with him. The Obama administration has placed detainee lawyers in important positions in the government because, clearly, the president agrees with the ACLU perspective on the war on terrorism."

And there's something too easy about going after the assistant and undersecretaries for policies endorsed at the very top.

Doesn't Obama have the right to pick his own people? I asked Burlingame. She answered, "He has a right to do it, but does he have a right to do it in the dark?"

The answer is no. But don't take potshots in the dark either.

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