TIME justice

Obama Mulls Replacements for Holder

Attorney General Eric Holder Announces Civil Rights Investigation Into Michael Brown Death
U.S. Attorney General Eric Holder announces a Justice Department 'patterns and practice' investigation of the Ferguson, Missouri, police department during a news conference at the department's headquarters Sept. 4, 2014 in Washington, DC. Chip Somodevilla—Getty Images

The President announced Eric Holder will remain in office until a successor is confirmed

The White House is already working with a narrow list of possible successors to outgoing Attorney General Eric Holder, Democratic sources familiar with the selection process tell TIME.

The candidates include former Homeland Security Secretary Janet Napolitano, U.S. Attorney for the Western District of Washington State Jenny Durkan, U.S. Attorney for the Southern District of New York Preet Bharara, Solicitor General Donald Verrilli, Labor Secretary Thomas Perez, Deputy Homeland Security Secretary Alejandro Mayorkas, and former Associate Attorney General Tony West, the Democratic sources say.

President Barack Obama has not yet decided whom he will choose to succeed Holder, White House officials say, and Holder will stay in office until a successor is confirmed by the Senate. The sources caution that the list of seven names is not exhaustive, and that some on it are being more seriously considered than others. The White House has initiated a formal selection process run by a team that will include White House Counsel Neil Eggleston and will involve interviews and background checks both for security and for political viability.

That latter consideration will be important as the Administration intends to bring the nominee up for Senate consideration during the lame-duck session after the midterm elections in November. Already Republicans, including the ranking minority member of the Senate Judiciary Committee, Sen. Charles Grassley (R-Iowa), have said the confirmation process should be put off until January, when a new, possibly Republican-led Senate convenes.

That is unlikely, though.

“This is a high-priority position; it’s important not just for the President in terms of offering some advice and counsel, it also is important to the country in terms of enforcing our laws,” White House Press Secretary Josh Earnest told reporters Thursday afternoon. “So this is something that will get a fair amount of attention and I’m confident that whoever is nominated to this position will be the kind of candidate that deserves bipartisan support in the Senate.”

But in a sign of how cold relations between the White House and Hill Republicans have become, an aide to Grassley said the senator was not informed of Holder’s imminent resignation before the announcement Thursday, and as of 6 p.m. that evening, he had not been contacted by the Administration. An aide to Senate Judiciary Committee’s Democratic chairman, Patrick Leahy of Vermont, said the senator and Holder had spoken “in the last couple of days.”

It is unclear whether the White House intends to consult Republicans as part of the process of selecting a nominee. Holder’s predecessor, Attorney General Michael Mukasey, was picked by then-President George W. Bush after lengthy discussions with Senate Democrats, though the circumstances were quite different. In the wake of the scandal surrounding the politically-motivated firing of federal prosecutors by then-Attorney General Alberto Gonzales, the Bush White House had secret conversations with powerful Democrats, who controlled the Senate. One Democratic aide then on the Judiciary Committee said Bush’s White House counsel Fred Fielding consulted Sen. Charles Schumer (D-N.Y.) over possible successors and that Sen. Harry Reid (R-Nev.) rejected one candidate, former Solicitor General Ted Olson. Both sides eventually settled on Mukasey.

The candidates this time represent a fairly broad cross section of legal backgrounds. Two have limited experience on national security matters. At least one has a rocky record of confirmation in the Senate.

Perez faced a tough battle in the Senate to become Labor Secretary, getting confirmed 54-46 on a party-line vote after overcoming a GOP filibuster. Mayorkas was confirmed as Homeland deputy last December after heading the U.S. Citizenship and Immigration Services; he was previously a U.S. attorney in California during the Clinton administration. Napolitano served as Obama’s Homeland Security secretary from 2009-13. Durkan has said she intends to step down as the top prosecutor in Seattle this month; she prosecuted financial and national security cases. Bharara has successfully pursued scores of insider trading cases on Wall Street and several high profile national security cases. Verrilli is the Administration’s top lawyer at the Supreme Court and argued high-profile cases including the successful defense of Obamacare. West stepped down Sept. 15 as the No. 3 Justice Department official after successfully winning more than $30 billion in settlements from Wall Street banks in the wake of the financial crisis.

TIME Barack Obama

Obama’s Anti-ISIS War in Syria May Be Illegal

U.S. President Obama speaks on the phone with Saudi Arabia's King Abdullah from the Oval Office of the White House in Washington
U.S. President Barack Obama speaks on the phone with Saudi Arabia's King Abdullah, before giving a speech to the nation regarding the fight against ISIS, from the Oval Office of the White House, in Washington on Sept. 10, 2014. Kevin Lamarque—Reuters

Obama is relying on questionable legal authority in his pursuit of terrorists, but that never stopped George W. Bush.

If truth is the first casualty of war, law is apparently the last, at least for President Barack Obama.

Obama came to office declaring his determination to reimpose legal limits on the American effort to defeat al Qaeda. He swore to close Guantanamo Bay, abolish torture, tighten rules for the treatment of terrorist prisoners and rein in the broad executive power President George W. Bush had claimed in the global hunt for terrorists.

But after five-and-a-half years of near-constant terrorist brush fires in Africa, the Middle East and South Asia, and a Congress that remains largely unwilling to update key counterterrorism legislation, Obama appears finally to have surrendered to a very loose legal definition of where and when he can use military force against terrorists.

In his prime time speech Wednesday evening, Obama told Americans he was expanding attacks against the group calling itself the “Islamic State”, also known as ISIS or ISIL, by targeting its fighters not just in Iraq but also in Syria. “I will not hesitate to take action against ISIL in Syria as well as Iraq,” Obama said, “This is a core principle of my presidency: If you threaten America, you will find no safe haven.”

Strategically, that makes sense. Speaking to reporters before Obama’s speech, a senior administration official explained, “ISIL is moving with impunity back and forth from Syria to Iraq, and vice versa, each time and from each place gaining arms, gaining manpower, gaining fuel, literally and figuratively, for their fight.”

Legally, however, Obama’s authority to attack ISIS in Syria is on shaky ground. Under the Constitution, Congress decides if and when the U.S. goes to war. In 2002, it authorized President George W. Bush to attack Iraq. That authorization, broadly interpreted, can be read to include the threat ISIS now poses there. But it doesn’t apply to Syria, at least not easily. And the Obama Administration announced this summer that it was no longer using the 2002 authorization to justify its actions.

Instead, Obama claims he has authority to bomb ISIS in Syria under the Sept. 14, 2001 authorization from Congress following the 9/11 attacks. In the call with reporters, Obama’s senior administration official said, “We believe that he can rely on the 2001 AUMF [Authorization for Use of Military Force] as statutory authority for the military airstrike operations he is directing against ISIL.”

That joint resolution gave the president the power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

A variety of legal scholars on the left and the right, including Obama himself, have argued that authorization is too broad and needs to be rewritten so it doesn’t give eternal war-fighting power to all future presidents. And as Jack Goldsmith writes for TIME today, it’s a stretch for Obama to claim it applies to ISIS, given that ISIS and al Qaeda split earlier this year.

According to a 2012 speech by Jeh Johnson, the Secretary of Homeland Security who previously served as Obama’s top lawyer at the Department of Defense, there are two characteristics that a group must have to be considered an “associated force” with al Qaeda under the 2001 authorization. First they must be “an organized, armed group that has entered the fight alongside al Qaeda,” and second, the group “is a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners.” The White House has yet to release to Congress or the public any detailed analysis of their determination that the Islamic state meets these standards.

If Obama is breaking the law, don’t expect much to come of it in the short term. The consequences of Obama’s legal interpretation, beyond his own discomfort, are not likely very great. The Bush administration showed the bar for legally constraining presidential counterterrorist actions is high, and even when it is surmounted there are little or no penalties. Politically, the president has nothing to fear: no matter how angry they are about the new effort against ISIS, the left wing of Obama’s party isn’t going to impeach him, and the right won’t either, at least not for going after Islamic extremists.

In the long term, perhaps Obama’s legal legerdemain will boost those who want to come up with new, clearer legal frameworks for international counterterrorism operations. But for now Obama, like Bush before him, seems determined to act without them.

TIME White House

Understanding the ISIS Threat to Americans at Home

Resident of Tabqa city touring the streets on a motorcycle waves Islamist flag in celebration after Islamic State militants took over Tabqa air base, in nearby Raqqa city
A resident of Tabqa city touring the streets on a motorcycle waves an Islamist flag in celebration after Islamic State militants took over Tabqa air base, in nearby Raqqa city, Syria, on Aug. 24, 2014 Stringer—Reuters

Obama makes his case for increasing attacks on the Islamic extremist group

President Barack Obama will tell the country Wednesday why he is stepping up military action against the terrorist group that calls itself the “Islamic State in Iraq and Syria”, also known as ISIS or ISIL. His biggest challenge may be reconciling for war weary Americans his administration’s conflicting messages about whether the group poses an immediate homeland threat to the United States.

On the one hand, Attorney General Eric Holder has said western fighters joining ISIS and returning home radicalized are the national security danger he worries about most. “We are seeing, I would say, an alarming rise in the number of American and European Union nationals who have been going to Syria to help extremist groups,” Holder told TIME last month. “This represents a grave threat to our security,” he said.

But in a thorough presentation on Sept. 3 at the Brookings Institution, outgoing director of the National Counterterrorism Center, Matthew Olsen, presented a less scary picture. ISIS has no cells in the U.S., Olsen said, “full stop.” Further, Olsen said, “we have no credible information” that the group “is planning to attack the U.S.” ISIS, Olsen said “is not al Qaeda pre-9/11.”

So is the group a direct threat to Americans at home, and is Obama right to increase military action against the group?

Holder says the danger comes from the combination of westerners joining ISIS and the expert bomb-makers working for the al Qaeda affiliate in Yemen, Al Qaeda in the Arabian Peninsula (AQAP). It is not clear what if any evidence exists of such collaboration yet. On the one hand, AQAP has issued statements in support of ISIS, and both groups are active in Syria and Iraq; on the other, al Qaeda and ISIS split in the last year after a debate over tactics and territory.

Several senior administration officials tell TIME they have seen no evidence of direct contact between individual members of AQAP and ISIS.

That said, ISIS doesn’t have to threaten Americans at home to warrant military action against them abroad, U.S. officials argue. The group’s military successes in Syria and Iraq threaten U.S. and European interests in the Middle East, Obama says. “We did an assessment on the ground,” Obama told Meet The Press on Sept. 7, and concluded that to protect American personnel and diplomatic facilities the U.S. needed “to launch air strikes to ensure that towns like Erbil were not overrun, critical infrastructure, like the Mosul Dam was protected, and that we were able to engage in key humanitarian assistance programs that have saved thousands of lives.”

And the potential threat of ISIS targeting the U.S. in the future is real, administration officials say. More conservative observers like Olsen agree that it is better to go on the offensive against ISIS now than to risk them becoming a bigger threat to Americans later. “ISIL poses a multi-faceted threat to the United States,” Olsen said at Brookings, and it “views the U.S. as a strategic enemy.” He says ISIS, “has the potential to use its safe haven to plan and coordinate attacks in Europe and the U.S.” Foreign fighters joining ISIS, “are likely to gain experience and training and eventually to return to their home countries battle-hardened and further radicalized,” Olsen says.

“Allowed to proceed on the path they’re on, in other words, left unchecked, they would turn their sights more to the West and potentially to the United States,” Olsen says. That, presumably, is the case Obama will make to the American people on Wednesday evening.

TIME justice

Why Holder’s Probe Won’t Fix Ferguson

National Guard Called In As Unrest Continues In Ferguson
U.S. Attorney General Eric Holder appeared with Capt. Ron Johnson at Drake's Place Restaurant in Ferguson on Aug. 20, 2014. Holder's visit was meant to calm tensions after almost 10 days of protests. Pablo Martinez Monsivais—Pool/Getty Images

Not all investigations are created equal, and this one is tackling a big problem with small tools

Is the Ferguson police department racist?

Nearly a month after the shooting death of an unarmed black teenager at the hands of a white police officer, that question is going to get an official answer, as Attorney General Eric Holder has announced a broad investigation into whether the cops in Ferguson, Mo. engaged in a pattern or practice of civil rights violations over the years.

But not all investigations are created equal, and the new DOJ probe may not deliver the kind of results that last month’s impassioned demonstrators were looking for.

The Department already has a targeted probe into the shooting of the teenager, Michael Brown, by the police officer, Darren Wilson. That investigation is designed to answer the narrow question of whether Wilson broke the law by shooting and killing Brown. The first step in the process of answering that question will come when a grand jury decides whether or not to indict Wilson; the final step would be a trial jury’s determination of his guilt or innocence.

For all the power of that criminal probe, though, Wilson’s fate won’t fix Ferguson, one way or the other. Unfortunately for that struggling suburb, it is unlikely Holder’s new civil rights investigation will either.

The new investigation is being undertaken by the Civil Rights Division’s Special Litigation Section. It doesn’t prosecute crimes–there’s a separate criminal section in the division designed to help prosecutors do that. Instead, among other things, the Special Litigation Section seeks settlements and court orders to require systemically discriminatory police departments to improve their behavior. It gets them to do that by imposing reforms like increased transparency and data collection, fostering community-police partnerships, reviewing uses of force and providing training and supervision.

Which is not to say such steps aren’t useful. Holder today called the work of the Special Litigation Section “historic” and said the department has opened 20 such investigations in the last five years, and is enforcing 14 agreements with law enforcement organizations.

But even if the new investigation does find systemic discrimination in Ferguson, and even if it does lead to a settlement or a court order, that will amount to one small step in the beleaguered community’s efforts to rebuild and reform.

TIME justice

Justice Department Steps Up Ferguson Involvement

President Obama Press Briefing
President Barack Obama speaks about the unrest in Ferguson, Mo. while on vacation in Edgartown, Mass. on Aug. 14, 2014. Rick Friedman—Pool/Getty Images

In an effort to defuse tensions in Ferguson, Mo., the Justice Department has increased its involvement on the ground.

The Justice Department upped its involvement in the situation in Ferguson, Mo. Thursday, deploying advisers to local law enforcement, mediating between local faith leaders and government authorities and deploying the head of the criminal section of the department’s civil rights division to the scene.

Attorney General Eric Holder added rhetorical support to the moves Thursday afternoon from Martha’s Vineyard, where he is vacationing with President Barack Obama. In a statement, Holder suggested local law enforcement might be heightening tensions and that forces in Ferguson are insufficiently diverse.

“The law enforcement response to these demonstrations must seek to reduce tensions, not heighten them,” Holder said. Referring to discussions that took place this morning between civic leaders and law enforcement officials, mediated by members of the Justice Department’s Community Relations Service, Holder said, “Over time, these conversations should consider the role that increased diversity in law enforcement can play in helping to build trust within communities.”

Federal officials investigating the death of Michael Brown, the young man whose shooting Saturday at the hands of local cops triggered the unrest, have interviewed a friend, Dorian Johnson, who says he witnessed the shooting, a person familiar with the investigation says. A lawyer for Johnson told MSNBC that local law enforcement officials weren’t interested in hearing his account of the shooting.

The Justice department has dispatched policy advisers to provide “technical assistance” to local law enforcement, Holder said. The officials will not play a direct role in crowd control, but rather are intended to provide advice and oversight—essentially federal supervision—to local law enforcement as they try to decrease tensions and maintain order.

TIME

Eric Holder: Obama’s Use of Executive Power Has Been Limited

US-JUSTICE-RIGHTS-HOLDER
U.S. Attorney General Eric Holder speaks during an event to celebrate the 50th anniversary of the Civil Rights Act at Howard University in Washington on July 15, 2014 Mandel Ngan—AFP/Getty Images

Ahead of an expected lawsuit from the House of Representatives, Attorney General Eric Holder defended President Obama’s use of executive power and said it was a fraction of what other Presidents have done. Speaking to TIME on Tuesday, Holder said Obama had used executive orders far less than Teddy Roosevelt, and said that the Justice department had approved all his orders before hand for legality.

“I was looking the other day just at a list of presidents and Teddy Roosevelt issued about 1,000 executive orders,” he said. “So in terms of magnitude this president has not used this authority nearly as much as his critics would say.”

Holder also addressed his ongoing review of administration immigration policies, including consideration of expanding protection from deportation to include not just unaccompanied minors but adult undocumented immigrants as well. Holder also said he believes that westerners traveling to Syria and Iraq, where they can come into contact with skilled bomb-makers from al Qaeda offshoots, represent a grave threat to U.S. national security.

The interview has been condensed and edited for space.

Has there been actual direct contact between western Jihadis and terrorist organizations in Syria and Iraq?

The short answer to that question is yes. We are seeing I would say an alarming rise in the number of American and European Union nationals who have been going to Syria to help extremist groups. I think it’s just a matter of time before we put Iraq in that same category. We have opened dozens of investigations into Americans who have been traveling there. At this point we have eight open cases in various stages of people who have traveled to Syria.

I would characterize it as a grave threat to our security. Every morning I start my day going over the threat assessment for the previous 24 hours over at the FBI, and increasingly the topic of individuals traveling from the United States to Syria and Iraq—Iraq is starting to crank up—that has become a real issue. We estimate there are about 7,000 foreign fighters in Syria, from the EU, North Africa, and some from the United States. They go there, they can become radicalized, and they can return home with the intent to commit violence. And they have the know-how to do it on potentially a mass scale.

Is that your greatest worry on the national security front?

Core al Qaeda has really been weakened, there’s no question about that. But these offshoots, even those organizations that have split from al Qaeda, are of great concern and the brew that is potentially in the mix there between these groups, getting together, sharing expertise, whether its Al Qaeda in the Arabian Peninsula and the expertise they possess with regard to the creation of bombs, marrying them up with other groups. It’s the combination of these offshoots plus these foreign fighters. Those are the things that really give me concern.

How much of your time do you have to spend worrying about, thinking about and addressing the pressure from the Hill to constrain the executive branch?

We’ll have to see. There’s a very tangible thing we’re going to potentially have to deal with, which is the lawsuit that I think the House is going to file at some point. And the Justice department will obviously be involved in that. But in terms of the use of executive action, the president has appropriately used executive authority as other presidents have. He’s used executive action, around 180 times, something like that. I was looking the other day just at a list of presidents and Teddy Roosevelt issued about 1,000 executive orders. So in terms of magnitude this president has not used this authority nearly as much as his critics would say. But when executive action is proposed it is something that is reviewed here by the appropriate components within the Justice department and a legal determination made that the President can act in that way.

Have you reviewed the issue of expanding the president’s powers to grant reprieve from deportation proceedings for a broader number of people, not just children?

I’d say we’re reviewing that. The president has asked me and Secretary Jeh Johnson from Homeland Security to look into a wide range of things. So I’d say that we are reviewing the specific one that you had mentioned, but we are more broadly looking at the whole immigration portfolio.

Do you take a position on the philosophical debate over the purpose of incarceration, whether it is for rehabilitation or for retribution?

The purpose of sentencing, there’s a variety of factors: deterrence, punishment, rehabilitation. That’s all a part of what a good sentence is all about. But when done well it tends to focus on looking at the individual. I was a judge for five years here in Washington, DC, and it’s a combination of art and science.

 

TIME justice

Exclusive: Attorney General Eric Holder to Oppose Data-Driven Sentencing

US-JUSTICE-RIGHTS-HOLDER
U.S. Attorney General Eric Holder speaks during an event to celebrate the 50th anniversary of the Civil Rights Act at Howard University in Washington on July 15, 2014 Mandel Ngan—AFP/Getty Images

Statistics can predict criminal risk. Can they deliver equal justice?

Updated: Thursday, July 31, 2014, 1:35 p.m.

Citing concerns about equal justice in sentencing, Attorney General Eric Holder has decided to oppose certain statistical tools used in determining jail time, putting the Obama Administration at odds with a popular and increasingly effective method for managing prison populations. Holder laid out his position in an interview with TIME on Tuesday and will call for a review of the issue in his annual report to the U.S. Sentencing Commission Thursday, Justice department officials familiar with the report say.

Over the past 10 years, states have increasingly used large databases of information about criminals to identify dozens of risk factors associated with those who continue to commit crimes, like prior convictions, hostility to law enforcement and substance abuse. Those factors are then weighted and used to rank criminals as being a high, medium or low risk to offend again. Judges, corrections officials and parole officers in turn use those rankings to help determine how long a convict should spend in jail.

Holder says if such rankings are used broadly, they could have a disparate and adverse impact on the poor, on socially disadvantaged offenders, and on minorities. “I’m really concerned that this could lead us back to a place we don’t want to go,” Holder said on Tuesday.

Virtually every state has used such risk assessments to varying degrees over the past decade, and many have made them mandatory for sentencing and corrections as a way to reduce soaring prison populations, cut recidivism and save money. But the federal government has yet to require them for the more than 200,000 inmates in its prisons. Bipartisan legislation requiring risk assessments is moving through Congress and appears likely to reach the President’s desk for signature later this year.

Using background information like educational levels and employment history in the sentencing phase of a trial, Holder told TIME, will benefit “those on the white collar side who may have advanced degrees and who may have done greater societal harm — if you pull back a little bit — than somebody who has not completed a master’s degree, doesn’t have a law degree, is not a doctor.”

Holder says using static factors from a criminal’s background could perpetuate racial bias in a system that already delivers 20% longer sentences for young black men than for other offenders. Holder supports assessments that are based on behavioral risk factors that inmates can amend, like drug addiction or negative attitudes about the law. And he supports in-prison programs — or back-end assessments — as long as all convicts, including high-risk ones, get the chance to reduce their prison time.

But supporters of the broad use of data in criminal-justice reform — and there are many — say Holder’s approach won’t work. “If you wait until the back end, it becomes exponentially harder to solve the problem,” says former New Jersey attorney general Anne Milgram, who is now at the nonprofit Laura and John Arnold Foundation, where she is building risk-assessment tools for law enforcement. Some experts say that prior convictions and the age of first arrest are among the most power­ful risk factors for reoffending and should be used to help accurately determine appropriate prison time.

And data-driven risk assessments are just part of the overall process of determining the lengths of time convicts spend in prison, supporters argue. Professor Edward Latessa, who consulted for Congress on the pending federal legislation and has produced broad studies showing the effectiveness of risk assessment in corrections, says concerns about disparity are overblown. “Bernie Madoff may score low risk, but we’re never letting him out,” Latessa says.

Another reason Holder may have a hard time persuading states of his concerns is that data-driven corrections have been good for the bottom line. Arkansas’s 2011 Public Safety Improvement Act, which requires risk assessments in corrections, is projected to help save the state $875 million through 2020, while similar reforms in Kentucky are projected to save it $422 million over 10 years, according to the Pew Center on the States. Rhode Island has seen its prison population drop 19% in the past five years, thanks in part to risk-assessment programs, according to the state’s director of corrections, A.T. Wall.

The spread of data analysis in criminal justice is a relatively new phenomenon: not long ago, reckoning a criminal’s debt to society was the work of men. For much of the 20th century judges, parole boards and probation officers made subjective decisions about when and whether a criminal was ready to return to society. Then in the 1970s and ’80s, as lawmakers sought to eradicate racial bias and accommodate victims’ rights, jail terms increasingly became a matter of a fixed formula set by law in a process that boiled down to the adage, “Do the crime, do the time.”

The result was a huge surge in prison populations, jail for low-risk offenders and often freedom for unrehabilitated inmates. The number of U.S. prisoners has risen 500% since 1980, to more than 2.2 million in 2012; 95% of them will be released at some point. Evidence collected everywhere from conservative Texas to liberal Vermont shows that statistical analysis used to rank prisoners according to their risk of recidivism can reduce prison populations and reduce repeat offending.

The federal Bureau of Prisons says it uses an assessment tool to gauge risk of misconduct among inmates and determine the security conditions under which they are held. Holder says he wants to ensure that the bills that are moving through Congress, which require broader use of assessments in federal prisons, account for potential social, economic and racial disparities in prison time. “Our hope would be to work with any of the Senators or Congressmen who are involved and who have introduced bills here so that we get to a place we ought to be,” Holder said.

With reporting by Tessa Berenson and Maya Rhodan / Washington

The original version of this story has been updated to reflect comment from the federal Bureau of Prisons provided after publication

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