In part two of a series, Reason Foundation's Shikha Dalmia offers a libertarian perspective on the best and worst choices Obama could make for U.S. Attorney General:
All wars expand the power of government - and so it's been with the "war on terrorism."
After the 9/11 attacks, Congress hastily passed the ill-conceived Patriot Act that effectively gutted privacy, due process and other rights. It gave federal authorities powerful new tools to: conduct warrant less wiretapping; search homes without immediately informing homeowners under the notorious "sneak and peek" provisions; and seize customers' rental or bank records without proper court orders simply by issuing National Security Letters to businesses.
The Bush administration has also claimed extraordinary powers in how it treats foreign prisoners, seeking to indefinitely detain anyone, even a US citizen, captured overseas without access to attorneys or courts. The Supreme Court repudiated the administration's position, first in Hamdi v. Rumsfeld and then in Boumediene v. Bush, noting that the administration cannot unilaterally strip these so-called enemy combatants of their habeas corpus rights - the right to be shown the evidence against them.
But if the Bush administration's war on terrorism has shredded civil liberties, its escalation of the war on drugs has shredded federalism. It has stepped-up raids on medical marijuana dispensaries - in states where they are legal. And it has redoubled efforts to obtain mandatory minimum sentences in drug-related cases, forcing judges to put away for years even non-violent drug offenders. More people are being incarcerated for drug offenses than for all violent crimes combined - without making any appreciable difference in the supply or use of drugs. Nor is the crackdown on drugs the only instance where Bush has tried to prosecute victimless crimes. In a stunning move, he created a special task force to prosecute hard-porn makers marketing products featuring adults for adults.
President-elect Obama needs to make undoing these draconian policies a top priority, possibly by dismantling the Patriot Act and certainly by ending the war on drugs (and porn). And for that he needs an Attorney General who appreciates the concerns of civil libertarians.
The best choice would be Kurt Schmoke, the former mayor of Baltimore who is now Dean of Howard Law School. Schmoke has been an outspoken critic of the War on Drugs having observed its impact on his city upfront. He has argued that decriminalizing drugs would produce a huge drop in homicide rate by taking the profit out of them. He has made this his signature issue which, combined with his executive experience and solid background in jurisprudence, makes him something of an ideal candidate.
Another good choice would be Virginia's Democratic Sen. Jim Webb, whom Obama reportedly considered as his running mate. It would certainly be unprecedented to appoint someone without a law background for this post. But Sen. Webb gets it right on too many issues to be passed. He is a decorated veteran who served as Assistant Secretary of Defense for Reserve Affairs and Secretary of Navy during the Reagan administration. (He famously rebuffed President Bush's inquiry about his son, who was serving in Iraq, by asking Bush when he'd bring the troops home and refusing to shake his hand). He takes civil liberties very seriously. "The government's powers should end at my front door," he declared. He is a staunch Second Amendment supporter. He voted to require FISA (Foreign Intelligence Surveillance Act) court warrants for monitoring overseas calls originating in the U.S. He takes a dim view of the practice of rendition that involves transporting foreign prisoners to countries with laxer laws against torture. And he wants to reform America's criminal justice system and opposes mandatory three strike sentencing laws. On the drug war, he has advocated treatment over incarceration for drug users as a way of reducing prison over-population.
Also solid - though not as stellar -- would be Rep. Bobby Scott, an African-American-Filipino Virginia Democrat, who currently chairs the Subcommittee on Crime, Terrorism, and Homeland Security. He has opposed at every turn the Bush administration's efforts to expand its terror-fighting powers, voting against expanded wiretap authority and using FISA to eavesdrop into private conversations. He refused to make the Patriot Act permanent and he has generally supported reform of our drug laws to make them less draconian. On another front, he joined Rep. Bob Barr in opposing the creation of DNA databases.
Among the barely acceptable picks would be Arizona Gov. Janet Napolitano. A former U.S. attorney, she supports the drug war. However, she rightly opposes REAL ID, the federal program requiring states to have uniform standards for drivers' licenses - although her opposition seems to be less out of principled concerns over the privacy and Big Brother implications of the program - and more out of funding concerns.
Among the bottom-of-the-barrel would be Eric Holder and Jamie Gorelick, both of whom were deputy attorney generals under Janet Reno. Holder's big attraction apparently is that he would be the first African-American Attorney General. But so would Schmoke. And though Holder has a good resume, his positions and record suggest that he does not understand the constitutional limitations within which this office is supposed to operate. He is a drug warrior and even proposed to stiffen penalties for the possession of marijuana. He was also involved in the federal government's decision to seize Elian Gonzalez from his aunt's home and return him to Cuba without obtaining a court order, a terrible lapse of judgment. Nor is he a pillar of rectitude: There have been questions about whether he was completely upfront about the Justice Department's conduct in the Branch Davidians-Waco fiasco. And some suspect that he might have with-held information about billionaire fugitive and tax evader, Marc Rich, to facilitate Rich's pardon by President Clinton.
Equally bad would be Gorelick, who pushed, unsuccessfully, for the execution of Randy Weaver for killing federal agents in the botched raid in the Ruby Ridge case - rather than holding FBI agents accountable for killing Weaver's unarmed wife.
Appointing either of them will substitute one set of excesses with another and would not offer any fundamental rethinking of Justice's conduct or its powers.
Shikha Dalmia's picks for the Secretaries of Education, Transportation, and Treasury are here.