As the top post in the Department of Justice, the Office of the Attorney General (AG) oversees the nation’s largest and most important collection of legal and law enforcement operations. The US Attorney General is considered the federal government’s top legal official, responsible for advising the President and his cabinet on matters of the law and managing the Justice Department’s many offices and departments. Although the AG post is held by a lawyer, the attorney general is often viewed as much a political figure as a legal one. The AG’s office has been no stranger to controversy over the years, including during the administration of George W. Bush, which has seen three different attorneys general become involved in the government’s use of illegal and unconstitutional tactics in its fight against terrorism.
The Judiciary Act of 1789 created the Office of the Attorney General (AG) to represent the federal government in cases before the US Supreme Court and to give legal advice to the President or the heads of cabinet-level departments. For most of the 19th century, the AG was the only cabinet official not to preside over an executive department.
The Judiciary Act of 1789 made no provision for a Department of Justice or even for subsidiary officers or clerical staff to assist the attorney general in his duties. As a result of this oversight, the AG’s office struggled in the beginning to keep up with its duties, although several legislative efforts were made during the 1800s to expand the resources and available staff for the AG.
It was not until 1870 that legislation was adopted that created the Department of Justice under the authority of the AG and finally gave the nation’s top legal officer a full staff to work with. Another important provision of the 1870 legislation was the creation of the Office of Solicitor General, who took over the responsibilities of representing the government in cases before the Supreme Court. From here on out, the AG was required to appear before the court only “in matters of exceptional gravity or importance.”
Throughout its long history, the AG has evolved into a role that is as much political as it is legal. When President John F. Kennedy was elected to the White House in 1960, he appointed his brother, Robert Kennedy, to serve as attorney general. The decision was criticized by Kennedy’s opponents as blatant nepotism. A decade later, President Richard Nixon’s first attorney general, John Mitchell, stepped down to run the president’s 1972 re-election campaign and was later implicated in the infamous Watergate scandal.
During the second term of President Ronald Reagan, Edwin Meese III became one of the most controversial figures of the administration because of his role in the Iran Contra scandal.
The 1990s witnessed the first woman to serve as attorney general. Janet Reno, who also was the longest serving AG in the 20th Century, lasted throughout President Bill Clinton’s eight tumultuous years in office. During this time period, legal controversies surrounded the Clinton White House, from Whitewater to Monica Lewinsky to impeachment, which required Reno to make difficult decisions relating appointing special prosecutors to investigate claims of illegal or improper behavior by the President.
The current administration of George W. Bush also has pulled the attorney general into controversial matters stemming from the White House’s aggressive effort to combat terrorist threats against the country (see Controversies).
The Office of the Attorney General is the lead entity within the Department of Justice (DOJ) that oversees all operations of the department. The attorney general leads DOJ and is the chief law enforcement officer and lawyer of the US government. The attorney general also serves as a member of the President’s cabinet. The AG is the only cabinet department head who is not given the title of “Secretary.”
The Office of the Attorney General supervises and directs the administration and operation of the Department of Justice, including the FBI, Drug Enforcement Administration, Bureau of Alcohol, Tobacco, Firearms and Explosives, Bureau of Prisons, Office of Justice Programs and the US Attorneys and US Marshals Service. The principal duties of the Attorney General are to:
- Represent the United States in legal matters.
- Furnish advice and opinions, formal and informal, on legal matters to the President and the cabinet and to the heads of the executive departments and agencies of the government.
- Make recommendations to the President concerning appointments to federal judicial positions and to positions within the department, including US Attorneys and Marshals.
- Represent or supervise the representation of the federal government in the US Supreme Court (usually through the Solicitor General) and all other courts, foreign and domestic.
Mukasey and Waterboarding
Following the resignation of Alberto Gonzales, President Bush turned to former federal judge Michael Mukasey to head the Justice Department. When his confirmation hearings began, Mukasey got off on the right foot with Congressional Democrats by declaring that he would resign if directed by the White House to take any action he believed was illegal or violated the Constitution.
On the second day of his testimony, however, Mukasey sidestepped the question of whether waterboarding—an interrogation technique for which American soldiers could be court-martialed during the Vietnam War—did indeed constitute a form of torture. He also suggested that the president’s constitutional powers could supersede federal law in some cases.
Although concerned about Mukasey’s remarks, Democrats ultimately agreed to confirm him as attorney general. Several months later, Democratic lawmakers called for Mukasey to open a criminal investigation into the CIA’s use of waterboarding on suspected terrorists. Mukasey rejected the demand.
“Whatever was done as part of a CIA program at the time that it was done was the subject of a Department of Justice opinion ... and was found to be permissible under the law as it existed then,” Mukasey told lawmakers. He added that since the CIA agents had relied on a Justice Department opinion that the technique was legal, he did not believe they should be subjected to an investigation.
Firing of US Attorneys Brings Down AG
In 2007 all of Washington, DC, was abuzz over revelations that Attorney General Alberto Gonzales had fired eight US Attorneys, some for apparently political reasons. The dismissed attorneys had all been appointed by President George W. Bush more than four years earlier.
The saga began in the White House in 2005 when Bush’s top political advisor, Karl Rove, and Deputy Chief of Staff Kyle Sampson discussed ways of removing several US Attorneys. In March 2005, Sampson came up with a “checklist” on which he rated each of the US Attorneys with criteria that appeared to value political allegiance as much as job performance. He recommended retaining “strong” attorneys who demonstrated loyalty to the Republican Party and removing “weak” ones who had gone against administration initiatives
One of the fired attorneys was Carol Lam, US Attorney for San Diego, who successfully prosecuted Republican Rep. Randy “Duke” Cunningham. Another was Bud Cummins, US Attorney for Little Rock, AR, whom Rove wanted to replace with a loyal GOP lawyer. Yet another was Paul Charlton, US Attorney in Arizona, who had investigated allegations of corruption against Republican Rep. Rick Renzi.
As a result of the scandal, numerous Department of Justice officials were forced to resign, including Gonzales, Deputy Attorney General Paul McNulty, acting Associate Attorney General William W. Mercer, Sampson and Chief of Staff for the Deputy Attorney General Michael Elston.
Gonzales was singled out for criticism by officials from all sides. For example, Republican Senator Charles Grassley of Iowa said the AG “did a lot of stupid things.”
Gonzales Pursues Ashcroft in Hospital
In 2004, as then-Attorney General John Ashcroft lay in a hospital bed recovering from having gallbladder surgery, White House counsel Alberto Gonzales and Chief of Staff Andrew Card tried to convince Ashcroft to renew the administration’s secret surveillance program which had just been deemed illegal by the AG’s legal advisors. Ashcroft’s top assistant, James Comey, rushed to the hospital to stop Gonzales and Card from trying to manipulate the seriously ill Ashcroft into continuing the program.
According to his testimony before Congress, Comey said he alerted FBI Director Robert S. Mueller III about the plan and raced, sirens blaring, to join Ashcroft in his hospital room, arriving minutes before Gonzales and Card. Ashcroft refused to sign the papers they had brought. Gonzales and Card, who had never acknowledged Comey’s presence in the room, turned and left.
Gonzales Hospital Episode Detailed
(by Dan Eggen and Paul Kane, Washington Post)
AG Approval of Extralegal Eavesdropping, Torture and Bypassing the Judicial System
Following the terrorist attacks on Sept. 11, 2001, the Bush administration embarked on aggressive and legally questionable strategies to pursue and imprison suspected terrorists using means that fell outside the American system of jurisprudence, not to mention not common decency. The tactics employed under the Global War on Terrorism campaign provoked a fiery debate that sometimes lined up conservatives and Bush administration officials on one side and civil libertarians and Democrats on the other. But not always. At times, even members of Bush’s inner circle privately or publicly expressed reservations for the strategies employed on behalf of protecting the country.
Firmly entrenched in the Bush camp was the Attorney General, a position first held by John Ashcroft and then by Alberto Gonzales, who played a key role as White House counsel while Ashcroft led the Department of Justice during Bush’s first term in office. While both men held the office of Attorney General, they appeared to be stout believers in President Bush’s plans to conduct domestic spying operations involving the National Security Agency, the indefinite jailing of terrorism suspects at the Navy base on Guantanamo Bay, Cuba, and the use of military tribunals, instead of civilian courts, to try detainees.
Ashcroft played a key role in the formulation and passage of the Patriot Act and its sequel, Patriot II or the Domestic Security Act of 2003 (PDF). However, after he stepped down as AG, it was learned that Ashcroft wasn’t as gung-ho about other radical steps being pushed by administration officials, such as Gonzales. Ashcroft reportedly was cool to broadening the president’s ability to expand domestic eavesdropping authority to monitor communications among suspected terrorists—which Gonzales was wholeheartedly behind. Ashcroft also had some reservations about the indefinite imprisonment of detainees at Guantanamo Bay, while Gonzales drafted the rules for military tribunals and oversaw a 2005 Justice Department opinion that granted CIA agents carte blanche to utilize extreme techniques of interrogation, including head-slapping, exposure to cold and simulated drowning (known as “waterboarding”), on terrorism suspects.
Pro:
When members of al Qaeda hijacked commercial airliners on 9/11 and crashed them into the World Trade Center and the Pentagon, these terrorists essentially declared war on America, according to supporters of the Bush administration. This situation established special circumstance upon which the government could pursue attackers, their supporters and would-be terrorists with any means available to protect the United States from future attacks and to bring those responsible for 9/11 to justice. On January 25, 2002, Gonzales wrote to the president telling him that the Geneva Convention did not apply to members of Al Qaeda because this was “a new kind of war” or to members of the former Taliban government in Afghanistan because they did not control the entire country and were thus not really a government, but rather “a militant, terorrist-like group.” This rationale set the legal foundation for holding detainees offshore in Cuba and to employ harsh interrogation methods to extract timely intelligence.
In the war on terror, information is at a premium, and it is critical that government agents and other officials have all the necessary means available to go after those who pose a threat to the US, according to supporters. Gonzales wrote that it was important not to limit the tools available to America’s guardians, for if the administration began “ruling out speculated interrogation practices, we would fairly rapidly provide Al Qaeda with a road map concerning the interrogation that captured terrorists can expect to face and would enable Al Qaeda to improve its counter-interrogation training to match it.”
Con:
Civil libertarians and some law experts expressed concerns from the very beginning of the Bush administration’s answer to combating terrorist threats, beginning with the passage of the Patriot Act. What concerned opponents the most was, in essence, that in order to save the country, the administration was undermining the very constitutional basis and system of laws which make America special in the world. For human rights experts, the messages put forth by Ashcroft, Gonzales and others were appalling, demonstrating no political conscience for what their policies would ultimately mean for the nation’s present and future form of democracy.
The president and his close advisors thought they could win this war by “acting tough” and treating the rule of law and constitutional freedoms as optional. Fearmongering has become a means to an equally frightful end where legal standards are upheld only for the sake of political convenience, or simply discarded altogether. By taking the country down this path, the administration is playing right into Al Qaeda’s hands by further alienating America from the world.
Secy of State Powell Memo Opposing Geneva Convention Decision
(PDF)
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Founded: 1789
Annual Budget: $12.6 million
Employees: 46
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Office of the Attorney General
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Holder, Eric
Attorney General
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Eric H. Holder, Jr. was confirmed as Attorney General on February 2, 2009. Holder’s father, an immigrant from Barbados, sold real estate, and his mother worked as a secretary. Born in the Bronx in 1951, Holder grew up in East Elmhurst, a neighborhood in Queens. In the fourth grade he was selected to be part of a program for gifted children at a predominately Jewish school. He later received a scholarship to attend Stuyvesant High School in Manhattan, an hour-and-a-half commute away. An American History major, Holder graduated from Columbia College in 1973 and earned his J.D. from Columbia Law School in 1976. While at Columbia, Holder took part in student protests, including a sit-in at the dean’s office. He is currently a Columbia trustee.
After graduation from law school, Holder landed a job at the Justice Department’s newly-created Public Integrity Section, where he prosecuted such targets as a corrupt judge in Philadelphia, the Treasurer of the state of Florida, the Ambassador from the Dominican Republic, FBI agents, organized crime members and Rep. John Jenrette (D-South Carolina) in the 1980 Abscam scandal. Holder stayed with Public Integrity for 12 years.
In 1988 President Reagan nominated Holder to be an Associate Judge of the Supreme Court of the District of Columbia. Three years later, Deputy U.S. Marshall Michael Artis told the Washington Post that Holden was “the coolest judge on the whole bench. He’s smooth….Call him silky.” Of his five years as associate judge, Holder himself said, “I presided over hundreds of criminal trials and witnessed the devastation that can be traced to two simple elements: illegal drugs and senseless violence. As a judge, I also saw how poverty, despair, and failure to take personal responsibility for one's life and one's family tended to intensify the negative conditions that too many of our fellow citizens, particularly our young people, must endure.”
On October 8, 1993, Holder was sworn in as U.S. Attorney for the District of Columbia, the first African-American to hold the position. He was immediately given the high-profile case of corruption charges against Rep. Dan Rostenkowski (D-Illinois). Rostenkowski was indicted and went to prison after pleading guilty to mail fraud. In addition to dealing with federal cases, the position of U.S. Attorney for D.C. also includes responsibility for local crimes in Washington, a city with an unusually high crime rate. Holder is credited with a creative innovation: making prosecutors responsible for a particular area in the city and urging them to meet with local police and church leaders and to attend community meetings.
In 1997, President Clinton nominated Holder to serve as Deputy Attorney General, the number two position in the Justice Department. The Senate approved his nomination 100-0, and he assumed office in July 1997. As the effective chief operating officer of the Justice Department, Holder dealt with enormous responsibilities, and it was Holder who advised Attorney General Janet Reno to expand the investigation into the Monica Lewinsky affair.
The biggest blot on Holder’s career happened at the very end of the Clinton presidency, when he was asked to help obtain a presidential pardon for Marc Rich, a commodities trader who had been a fugitive for 17 years after being indicted by U.S. Attorney Rudolph Giuliani for tax evasion and illegal trading with Iran. On President Clinton’s final full day in office, Holder informed Clinton that his own opinion on the pardon was “neutral leaning towards favorable.” Clinton went ahead with the pardon. When it was revealed that Rich’s ex-wife had made large donations to the Clinton Presidential Library, Holder, on February 8, 2001, was sharply questioned by the House Committee on Oversight and Reform.
After George W. Bush took over the presidency, Holder went into private practice with the Washington, D.C. law firm of Covington & Burling. Among the clients he represented were the National Football League, including its investigation of Michael Vick for dogfighting; Merck, the pharmaceutical company, to negotiate a settlement with the U.S. government and five states for Medicaid fraud; and Chiquita Brands, for whom he negotiated a $25 million fine after it was proved that Chiquita officials had paid protection money to a Colombian group that was on the U.S. government list of terrorist organizations. Holder also served on the board of MCI prior to and during its merger with Verizon.
Holder met Barack Obama at a dinner party in Washington in 2004. In the spring of 2007, Obama called Holder and asked him to join his presidential campaign. Holder agreed immediately.
Holder has publically stated that he opposes capital punishment, but, as a representative of the U.S. government, he would enforce the death penalty when it is imposed.
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Mukasey, Michael
Previous Attorney General
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A native of the Bronx, New York, Michael Mukasey served as the United States Attorney General from November 2007 until the end of the administration of George W. Bush. Mukasey graduated from Columbia College and Yale Law School, where he was on the Board of Editors of the Yale Law Journal.
Mukasey served as an Assistant United States Attorney from 1972 to 1976 in New York. From 1975 to 1976 he also served as chief of his district’s Official Corruption Unit. From 1976 to 1987 he was an associate, and then member, of the law firm Patterson, Belknap, Webb & Tyler.
In 1988, President Ronald Reagan appointed Mukasey to the US District Court for the Southern District of New York, where he served until 2006, the last six years as chief judge. During that time, Judge Mukasey presided over hundreds of cases, including the trial of Sheik Omar Abdel Rahman and 11 co-defendants charged with conspiring to blow up numerous sites in New York.
After retiring from the bench, Mukasey returned to Patterson, Belknap, Webb & Tyler in the firm’s litigation group.
Like his predecessors, Ashcroft and Gonzales, Mukasey was a source of controversy. His remarks regarding the legality of waterboarding (see Controversies) almost derailed his confirmation, and while testifying before the Senate, he almost implicated President Bush in the torture scandal. It was also revealed that while serving as a federal judge, Mukasey took advantage of the US Marshals charged with protecting his safety by having them take out the garbage, carry groceries and tote golf clubs.
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