The trouble with team Obama

Maybe it's my lingering bitterness over the rationalisations Obama and his aides gave for caving on immunity for telecoms last summer, but I've got my reservations about the two lawyers, Greg Craig and Eric Holder, Barack Obama is reportedly adding to his White House administration. Both men are supremely well-qualified. Craig, whom Obama seems to have tapped to be his White House counsel, is currently a partner at Williams & Connelly. He has served as a senior foreign policy adviser to senator Ted Kennedy and a senior official under Madeline Albright at the state department. In addition, Craig helped defend Clinton against impeachment charges. The White House counsel position–basically the president's own counsel on legal policies–does not require Senate approval. Holder, like Craig, served in the Clinton administration, in the number two spot at department of justice. Before that, Holder served as DC district court judge (appointed by Reagan) and US attorney for DC (appointed by Clinton). Holder is currently a partner at Covington & Burling. Reports suggest Holder's nomination as attorney general is not yet finalised, and the nomination would require approval by the Senate–though Senate judiciary committee chair Patrick Leahy has already stated that he believes Holder would "have the support of senators from both sides of the aisle". And thankfully, Holder has criticised some of the excesses of the Bush administration. At a plenary speech at the American Constitution Society, Holder decried "scandals and miscues that are tied to the unrestricted exercise of executive branch power", and stated "the notion that the department of justice would in essence sanction the use of torture as part of the president's plenary power over military operations is as wrong as it is shortsighted". Holder has the kind of extensive DOJ experience that will serve him well to rebuild the department. And Craig's mix of foreign affairs and legal expertise will serve Obama well as he negotiates the challenges of national security. So given the exceptional qualifications of these two men, why my hesitation? In Holder's case, there's his buy-off on Bill Clinton's pardon of Mark Rich, in spite of those at DOJ who opposed pardoning a fugitive. Holder has since apologised for that judgment, yet it is an example of carelessness about the exercise of executive power. Then there are some of the figures each man has represented. Holder, for example, helped get Chiquita off with a slap on the wrist after it knowingly paid protection money to rightwing terrorists in Colombia. Similarly, Craig represented the former president of Bolivia in a lawsuit charging him with human rights violations for a massacre of civilians. While I agree with Glenn Greenwald that every accused person must be granted competent counsel, for two men who will be so instrumental in decisions about terrorism and the state's use of power, I find these cases troubling. Ultimately, I guess, I hesitate because of a combination of the degree to which these men are DC power players and, yes, the way Obama tried to excuse his flip-flop on Fisa. It was one thing to–as Obama did–reverse his policy on an issue pertaining to national security and executive power after he became the party's nominee. But it's another thing for Craig, speaking for Obama, to give a transparently bogus explanation for that reversal. Craig gave an explanation that he had to have known was untrue–that Fisa was expiring, which made passing the amendments to Fisa more urgent. I find that a troubling precedent for a future White House counsel. Now, it may be unfair to hold Holder–as another Obama campaign adviser–responsible for Craig's dishonest treatment of the Fisa flip-flop. After all, he has emphasised that the attorney general must remain independent of the president. Undoubtedly, Craig and Holder are dramatically better than Alberto Gonzales, Harriet Miers or Fred Fielding were as White House counsel; and better than John Ashcroft, Gonzales or Michael Mukasey have been as attorney general. But as Jack Balkin reminds us, Obama will be the strongest president in history. He has said he wants to cede significant parts of that power–starting with Guantánamo. I'm just not convinced two big DC insiders–one of whom has already damaged his credibility on a presidential power issue–are the men to help him do so.