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With Greg Craig Out Of The Way, Coast Is Clear For White House To Make Legal Calls On Political Grounds

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The White House counsel ideally serves as the president's conscience.

But late last year, Barack Obama's conscience was surgically removed.

Greg Craig, as Obama's top lawyer, was the point man on a number of hot-button issues, the fieriest being how to close the prison at Guantanamo Bay. Craig argued for holding fast to the principles that Obama outlined before he became president, regardless of the immediate political consequences -- an idealistic approach that, in a White House filled with increasingly pusillanimous pragmatists, earned him some powerful enemies.

After a steady drip of leaks over a period of months to the Washington Post, the New York Times, the Wall Street Journal and other news outlets to the effect that his days were numbered, Craig finally resigned in November.

He was replaced by Robert Bauer, a politically adept consummate Washington insider whose expertise is in campaign finance law -- in short, a man whose job is to win elections, not defend principles.

At the same time, Attorney General Eric Holder has been increasingly marginalized and cut out of the White House decision-making loop. So now the coast is clear for the White House to make important legal and national security calls on purely political grounds.

The only question that remains is whether Obama himself will have any last-minute qualms about turning his back on his own principles.

We should know in a matter of days, as the White House is expected to announce shortly whether the highest-profile terror suspects, including alleged 9/11 mastermind Khalid Sheikh Muhammad, will be tried in federal court or by military commissions.

Holder decided in November that the trials should take place in federal court in New York City. But concerns about traffic and security eventually led New York lawmakers to oppose the move.

And Republicans -- who are still defending former president George W. Bush's failed attempt to create an alternative legal system for terror suspects -- piled on, accusing any Democrats who favor federal trials for the likes of KSM as evidence that they are soft on terror.

Suddenly, administration officials were on their heels. And, rather than stick up for their attorney general, they started the process of undermining him.

White House Chief of Staff Rahm Emanuel, in particular, has long considered the issue a political loser, and is widely reported to be trying to strike a deal with Sen. Lindsay Graham, a South Carolina Republican, to make it go away: In return for the White House overruling Holder and sending the five most notorious suspects to military commissions, Graham would deliver GOP support for the rest of the White House's plan to close Gitmo.

Emanuel is apparently even wooing Rep. Peter King (R-N.Y.), the bombastic ranking member of the House Homeland Security Committee, who opposes closing Guantanamo and supports a ban on civilian trials of terror suspects. According to the Hill, Emanuel told King that he was "on his side", although King wasn't exactly sure what Emanuel was talking about.

Word of Emanuel's baldly political approach to a weighty moral and legal question, far from provoking outrage within the country's political media elite, has actually inspired a series of fawning profiles. The Washington Post's Dana Milbank set the tone in mid-February by writing that on such matters as the disposition of the terror suspects, "The president would have been better off heeding Emanuel's counsel" as not doing so resulted in "political fiasco."

But decisions about whom the government should prosecute -- and how -- are precisely the kind that shouldn't be made on political grounds. The American justice system is supposed to transcend partisanship, and be beyond the realm of political horsetrading. There are limits to how much the White House should do when it comes to interfering with the Justice Department -- limits that, unfortunately, every modern president seems to push.

And with Bauer serving in Craig's place, the pushback is lacking.

Even White House officials don't disagree that Bauer, who was general counsel for Obama's presidential campaign and chief counsel at the Democratic National Committee, is taking a fundamentally different approach to the job than his predecessor did.

Craig was undeniably opinionated. By contrast, a White House spokesperson told HuffPost: "Bob does not approach the position of White House counsel advocating for a particular set of policy preferences. He thinks that his role as counsel is to give the best legal advice available to the president and to other staff members in the White House."

So he doesn't stake out a position and defend it? "The White House counsel's office has not developed under Bauer a policy recommendation," the spokesperson said. "In the context of any pending legal question or pending policy, what they've done is to outline a range of options given their reading of the opportunities."

The White House did not make Bauer available for comment. And Craig declined several interview requests. But Craig's friends are horrified. Bauer is "becoming a validator and an enabler, rather than someone on the president's staff who keeps him out of trouble," said Steve Clemons, a senior fellow at the New America Foundation.

What Craig did was to try to keep Obama true to his campaign rhetoric about reversing the extremist legal views of the previous administration.

"To Greg Craig, that was a defining characteristic of what the Obama administration was supposed to be about," Clemons said. "He ended up being the guy who kept pulling Obama toward his own moral and legal and political commitments."

On the campaign trail, Obama didn't flatly rule out the use of military commissions, but he came pretty close, saying in August 2007:

I will make clear that the days of compromising our values are over...

I ... will reject a legal framework that does not work. There has been only one conviction at Guantanamo. It was for a guilty plea on material support for terrorism. The sentence was 9 months. There has not been one conviction of a terrorist act. I have faith in America's courts, and I have faith in our JAGs. As President, I will close Guantanamo, reject the Military Commissions Act, and adhere to the Geneva Conventions. Our Constitution and our Uniform Code of Military Justice provide a framework for dealing with the terrorists.

On his second full day in office, Obama suspended Bush's military commissions. But five months later, he reopened the door to their use, with a few modifications.

In this latest battle, the advocates of federal trials have more than idealism on their side. "Everyone who's actually involved in fighting terrorism, in dealing with terrorism, at the White House and in the administration, wants the 9/11 trials in federal criminal court," said a lawyer who has participated in discussions on detainee policy with White House officials.

The opposition to Holder's decision, by contrast, comes primarily "from people who have nothing to do with these issues," the lawyer said. "It's the people that don't have anything to do with terrorism or national security and are basically viewing Guantanamo as one huge distraction from the issues that play to the Democrats' advantage."

Take the politics out of the decision, and pragmatically, it's a no-brainer -- in large part because the military commission system's track record is so poor. As Obama himself correctly pointed out during the campaign, "By any measure, our system of trying detainees has been an enormous failure. Over the course of nearly seven years, there has not been a single conviction for a terrorist act at Guantanamo. There has been just one conviction for material support for terrorism. Meanwhile, this legal black hole has substantially set back America's ability to lead the world against the threat of terrorism, and undermined our most basic values."

Eight and a half years have now gone by since the 9/11 attacks, and Bush's attempt to do an end-run around the traditional justice system has just wasted time and sullied our international reputation. Meanwhile, even during the Bush years, the Justice Department was obtaining hundreds of terror convictions against more minor figures in federal court.

A federal trial of the 9/11 suspects would presumably begin more promptly than a still-untested military commission trial; a conviction there would be much less likely to be overturned on appeal; and the verdict would have more credibility overseas.

The latest drip-drip of leaks suggests that White House officials are in the end stages of a deal with Graham that they hope will take Gitmo out of the political equation. An article in Time earlier this month laid out the deal, and noted that Emanuel is motivated in part by his concern that congressional Democrats wouldn't support the White House if it stuck to the civilian trial route.

Just last week, the Wall Street Journal reported that the deal is near, and that Graham claims he can bring two other Senate Republicans along with him.

Emanuel certainly has plenty of reason to suspect that congressional Democrats can't be trusted to stand firm on any policy that Republicans could possibly use to accuse them of being weak on national security. After all, Democrats abjectly collapsed in May in the face of Republican fear-mongering about the risk that terror suspects jailed in high-security American prisons would pose to ordinary citizens. The result: the Democratic-majority Senate famously voted 90 to 6 to reject Obama's request for funds to close Gitmo.

But there's also lots of reason to doubt that Graham will be able to deliver on his side of the bargain. Senators John McCain and Joseph Lieberman earlier this month introduced legislation that would completely ban civilian trials for foreign terrorism suspects, even when arrested inside the United States -- and Graham's fellow Republicans seem a lot more partial to that approach.

Meanwhile, not invited to the key meetings anymore, Holder is expressing no regrets about his decision. At a recent congressional hearing, he addressed the arguments in favor of military commissions: Yes, commissions are a bit more flexible on admitting hearsay, but national security information is protected in both venues, defendants have similar rights in both, and experienced civilian prosecutors can actually be more aggressive than military prosecutors arguing in the unfamiliar setting of a military commission, he said.

Progressives, for their part, are getting really frustrated. Scott Horton, a professor and human rights lawyer who blogs for Harper's, told Huffpost that while the White House is completely within its rights to set Justice Department policy, it "has no role to play with respect to individual prosecutorial decisions. That should be taken by traditional prosecutors.

"That's the point where it becomes extremely unseemly, that an individual decision about someone's prosecution should be the subject of horse-trading between political appointees at the White House and Congress," Horton said.

Horton argues that the critical difference "between the Rove and Emanuel Justice Departments" is that "the former saw Justice as a tool to use to win elections and to menace or destroy political adversaries; the later intervenes out of fear that Republicans might be upset over some path that prosecutors have elected to pursue."

The American Civil Liberties Union is so upset, it bought a full-page ad in the Sunday New York Times earlier this month, showing Obama's image morphing into Bush's. "As president, Barack Obama must decide whether he will keep his solemn promise to restore our Constitution and due process, or ignore his vow and continue the Bush-Cheney policies," the ad said.

Anthony Romero, the ACLU's executive director, told the Wall Street Journal: "Any reversal would clearly indicate that the decisions of the Justice Department are much more politicized than we were led to believe."

According to the White House spokesperson, however, the outrage isn't justified. The spokesperson denied that Emanuel is engaged in horse-trading. "I think the reports have over-simplified the dialogue between the White House and Congress," he said.

And the White House had no choice but to open negotiations with Congress, he said. "The White House is involved because Congress and the states are considering actively constraining the administration's options when it comes to bringing the 9/11 detainees to justice," he said. "Naturally, the White House would be involved in an exchange with Congress about limiting our ability to prosecute these cases.

"Ultimately, the reality is that Congress is considering cutting off funding depending upon where the detainees are tried," he said. "We're working with Congress to maintain the overall imperatives in this process."

Those imperatives, he said, include closing Gitmo, which the White House considers a national security necessity, "bringing the 9/11 detainees to justice, years after they were apprehended, and maintaining a robust role for the federal courts in bringing terrorists to justice."

Tom Wilner, a Washington attorney who argued on behalf of Guantanamo detainees in the Supreme Court's 2004 and 2008 cases, in which they won habeas corpus rights, told HuffPost that he understands how the White House could feel it has to make a deal with members of Congress.

"I can imagine them saying, 'Look if I need to give up the trial of these five guys to military commissions in order to get Guantanamo closed and to preserve the right to try others in civilian courts, that's not a deal I particularly like, but overall I think it's worthwhile.' And I can understand them saying that," Wilner said.

"It's a shame, though, from my standpoint, because it makes no sense to try these people, who are the most important terrorists, in forums -- the military commissions -- that have less credibility and are untested and subject to challenge."

Wilner said it's also a shame because it undermines the message Obama ran on, "which is that we don't need to avoid our institutions to fight terrorism, that our existing institutions work and they're our strongest assets in the fight against global terrorism." That's a strong, consistent message, and one he should have stuck to.

As for how things will end up, Wilner had this to say: "I do think very highly of Greg Craig, and I know that he considered these sorts of issues very important. But even were he there, he's not the decision-maker."

And neither is the chief of staff. "I think it's too easy to blame Rahm Emanuel for everything," Wilner said.

Christopher Anders, senior legislative counsel for the ACLU, points out that nothing has been formally decided yet.

"At this point we haven't seen any changes," he said. "Obviously there've been a lot of rumors about recommendations that are being made to the president and decisions the president might make. " But for now, Holder's decisions stands.


Dan Froomkin is senior Washington correspondent for the Huffington Post. You can bookmark his page; subscribe to RSS feed, follow him on Twitter, friend him on Facebook, and/or become a fan and get e-mail alerts when he writes.

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