John P. Carlin is on track to become the Justice Department’s top national security lawyer, and assume responsibility for approving the thousands of domestic surveillance requests sent to the Foreign Intelligence Surveillance Court every year. If Attorney General Eric Holder had his way, Carlin never would have been nominated.
As Shane Harris reported at Foreign Policy yesterday, Holder “strenuously” objected to Carlin, who was instead the favored choice of White House officials “Kathryn Ruemmler, the White House counsel, and Lisa Monaco, the president’s homeland security and counterterrorism adviser.” Carlin had been Monaco’s chief of staff when she held the position, Assistant Attorney General for the National Security Division, prior to moving to the White House, and he now holds the office in an Acting capacity. Holder reportedly had his own list of candidates, including his own former national security counsel, Amy Jeffress.
Carlin’s anonymous critics quoted in the FP piece level two primary charges against him. First, while he is nominally qualified for the position, “several career prosecutors who know and have worked with Carlin say he does not have a firm enough grasp of national security and surveillance law, which is particularly important when approving applications for surveillance warrants in terrorism and espionage cases.” Second, and seemingly more to the core of the issue, “Former officials said they are concerned that Carlin … doesn’t speak as an independent voice for the department, but rather is aligning his positions first with the White House, and particularly with Monaco, thus undermining Holder’s authority.” Two went so far as to draw “comparisons to John Yoo, the controversial Justice Department attorney in the George W. Bush administration, who was known to have his own relationships with White House officials and was seen as operating outside channels meant to guard against political influence.” John Yoo was most famously the author of the Bush Administration “torture memos”.
At a time when more attention than ever before is being paid to the legal and extra-legal acrobatics the executive branch has performed to expand its surveillance powers, Carlin’s appointment should already be facing special scrutiny from the Senate Judiciary Committee. According to Slate, “The government has an astonishing success rate before the FISA court. Between 2010 and 2012, the court approved all of the 5,180 applications for surveillance and physical searches except for one that the government unilaterally withdrew.” That near-automatic approval makes the independence of the Justice Department all the more important. As one anti-Carlin former official quoted by Harris says, “There should be some walls between the Justice Department and the White House. The White House should not have a direct feed.”
Much of the resistance to Carlin quoted in the Foreign Policy piece appears to be a turf war between Holder and other Obama Administration officials. But the position and its responsibilities are far too important to pass without severe scrutiny in the post-Snowden era.