Bush National Security Policies Under Review

The Justice Department is reviewing nearly all of former President Bush's national security policies — from interrogation to domestic spying. Many of the people President Obama has tapped for key jobs in the department have spent the last eight years criticizing those policies. Their public statements could give a sense of where the department may be headed.

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President Obama's Justice Department is reviewing nearly all of former President Bush's national security policies, from interrogation to domestic spying. Many of the people Mr. Obama has tapped for key jobs in the department have spent the last eight years criticizing previous policies. NPR's Ari Shapiro reports that their public statements can give us a sense of where the Justice Department may be heading now.

ARI SHAPIRO: Under the Bush administration, the Justice Department's Office of Legal Counsel produced controversial memos on torture, surveillance, and detaining Americans without a trial. One Democratic Senator took to calling it Dick Cheney's little shop of legal horrors. So let's listen to the woman President Obama has chosen to lead that office, Indiana University law Professor Dawn Johnsen.

Professor DAWN JOHNSEN (Indiana University): Particularly on matters of national security, a dangerous view of presidential power has infected the Department of Justice, including the content of the Office of Legal Counsel's legal opinions; think, for example, torture and cruel treatment.

SHAPIRO: Johnsen was speaking at a panel last November at the Center for American Progress. She has said tremendous reform is needed at the Office of Legal Counsel. Some of the office's most controversial legal opinions are still secret. Listening to Johnsen it seemed a safe bet that's likely to change.

Ms. JOHNSEN: The current administration's excessive secrecy is corrosive of democracy.

SHAPIRO: Of course, back then the current administration meant President Bush. Many activist groups have spent the last eight years railing against Bush administration policies. Instead of going to those groups to fill the Justice Department's leadership ranks, President Obama turns to academia. Johnsen's two deputies at the Office of Legal Counsel are law professors, Marty Lederman of Georgetown and David Barron of Harvard. Like Johnsen, both worked at OLC in the '90s. So where do they stand on Bush policies? Well, here's what Lederman said on NPR after the Supreme Court gave Guantanamo detainees access to civilian courts.

Mr. MARTY LEDERMAN (Deputy at the Office of Legal Counsel): The court has decided that the Constitution does protect alien detainees being held by the United States and that there is no legal black hole.

SHAPIRO: For the record, Guantanamo's supporters tend not to use the phase legal black hole. Lederman's new colleague, David Barron, has criticized Bush administration claims that the president can ignore laws passed by Congress. Here was Barron on a Duke Law School panel in 2004.

Mr. DAVID BARRON (Office of Legal Counsel): It's quite easy to get a very stereotyped view of Congress as a bunch of ignorant actors never thinking about the common defense. And I don't think that that's a particularly fair presumption to be operating on when we see the statute they've passed.

SHAPIRO: Barron pointed to the anti-torture act, for example. Over in the Justice Department's National Security Division, President Obama's nominee has a more complicated record. David Kris worked his way up through the ranks of the Justice Department. As a senior Justice official in the Bush administration, he was one of the Patriot Act's biggest defenders. Here he testified before Congress in 2002.

Mr. DAVID KRIS (Former Justice Department Official): What is at stake here really is the government's ability effectively to protect this nation against foreign terrorists and espionage threats.

SHAPIRO: Because he was so vocal in that role, Kris made a huge splash a year later when he wrote a legal memo ripping into the Bush administration for its warrantless domestic spying program. By that time Kris had left the Justice Department.

In the Solicitor General's Office, President Obama's top Supreme Court advocate is Harvard Law Dean Elena Kagan. Her deputy challenged Bush's national security policies all the way up to the Supreme Court. Georgetown law Professor Neal Katyal argued one of the biggest Guantanamo cases, Hamdan versus Rumsfeld. This is tape from the argument.

Professor NEAL KATYAL (Solicitor General's Office): This is a military commission that is literally unbounded by the laws, Constitution and treaties of the United States, and if you adopt the government's position here, it effectively replicates the blank check that this court rejected in Hamdi.

SHAPIRO: Katyal won that case. It was his first ever argument before the Supreme Court. Now he can expect to argue many more cases, this time representing the government.

Ari Shapiro, NPR News, Washington.

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