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Justice Department's Independence 'Shattered,'
Law.com
Tony Mauro
Legal Times
April 16, 2007

Since the day he arrived at the Department of Justice in February 2005, Attorney General Alberto Gonzales has "shattered" the department's tradition of independence and politicized its operation more than any other attorney general in more than 30 years.

So says Daniel Metcalfe, a senior attorney at the department who retired in January, before the current controversy over the firing of U.S. Attorneys erupted. He views the episode as an "awful embarrassment" that has only worsened already-low morale at the department, especially among career attorneys.

Metcalfe, 55, served most recently as director of the Office of Information and Privacy. He co-founded the office in 1981 with Richard Huff. But his career at the department began in 1971. He started as an intern, working at the department full-time while attending law school at George Washington University. Later, he worked as a trial attorney in DOJ's Civil Division before founding OIP.

At that office, Metcalfe oversaw Freedom of Information Act policy throughout the executive branch. He gained a reputation as a principled official who would adhere to the policies of whichever administration he served, but not at the expense of following the letter and spirit of FOIA. "Dan earned great respect for the policies he helped form, even though they sometimes put him at odds with access advocates," says Paul McMasters, the recently retired First Amendment ombudsman at the Freedom Forum. Metcalfe plans to begin teaching law in coming months.

In interviews in person and by e-mail with Legal Times Supreme Court correspondent Tony Mauro, Metcalfe recently detailed his views about Gonzales and the politicization of the department, as well as information policy. The transcript follows.

Q: How do you view the current controversy at the department? Is this a time, as a recent retiree, when you would be missing the "excitement" of being at the department right now?

A: I miss many things about the Justice Department after having been there for so many years, not the least of which are the challenges that came up almost daily. One of the wonderful things about the position I held is that every single day held the prospect of bringing some new issue, or new potentially sensitive record, to be analyzed and addressed. With very limited exception, everything that the federal government does is reduced to a record, and any record can suddenly be "placed on the hook," as it were.

So when I walked in each morning, I knew I could be dealing with a difficult legal issue in virtually any area of governmental activity -- and as much as I'll enjoy teaching law, it'll be hard to ever top that. But if what you mean by "excitement" is the recent U.S. Attorney imbroglio, which is such an awful embarrassment to the department as an institution, I don't miss such things at all.

As a matter of fact, knowing that the office I headed for 25 years has been drawn into that controversy by, among other things, playing so visible a role in political e-mail processing, I'm frankly glad that I avoided any prospect of moral discomfort involved. In short, I never had to decide whether to participate in such a highly questionable, obfuscation-laden enterprise because it belatedly erupted in 2007, not in 2006.

Q: You began in the Justice Department during the Watergate years. How would you rank Alberto Gonzales in terms of politicization of the department in comparison to the other AGs you have worked for?

A: Actually, I began earlier, in the first Nixon administration, as a college intern in 1971. But I was there again in the Watergate era, when I worked in part of the Attorney General's Office during my first year of law school in 1973-1974, and then continuously as a trial attorney and office director for nearly 30 years. That adds up to more than a dozen attorneys general, including Ed Meese as well as John Mitchell, and I used to think that they had politicized the department more than anyone could or should. But nothing compares to the past two years under Alberto Gonzales.

To be sure, he continued a trend of career/noncareer separation that began under John Ashcroft, yet even Ashcroft brought in political aides who in large measure were experienced in government functioning. Ashcroft's Justice Department appointees, with few exceptions, were not the type of people who caused you to wonder what they were doing there. They might not have been firm believers in the importance of government, but generally speaking, there was a very respectable level of competence (in some instances even exceptionally so) and a relatively strong dedication to quality government, as far as I could see.

Under Gonzales, though, almost immediately from the time of his arrival in February 2005, this changed quite noticeably. First, there was extraordinary turnover in the political ranks, including the majority of even Justice's highest-level appointees. It was reminiscent of the turnover from the second Reagan administration to the first Bush administration in 1989, only more so. Second, the atmosphere was palpably different, in ways both large and small. One need not have had to be terribly sophisticated to notice that when Deputy Attorney General Jim Comey left the department in August 2005 his departure was quite abrupt, and that his large farewell party was attended by neither Gonzales nor (as best as could be seen) anyone else on the AG's personal staff.

Third, and most significantly for present purposes, there was an almost immediate influx of young political aides beginning in the first half of 2005 (e.g., counsels to the AG, associate deputy attorneys general, deputy associate attorneys general, and deputy assistant attorneys general) whose inexperience in the processes of government was surpassed only by their evident disdain for it.

Having seen this firsthand in a range of different situations for nearly two years before I retired, I found it not at all surprising that the recent U.S. Attorney problems arose in the first place and then were so badly mishandled once they did.

Q: Was the politicization a contributing factor to your decision to retire?

A: Yes it was, but probably not in the way you might think. It certainly is true that before Gonzales arrived I had never planned to retire as soon as I became eligible at age 55 (much to my wife's dismay), but it also is true that I had relatively little difficulty with substantive matters in my areas of responsibility under either Ashcroft or Gonzales. In fact, there were only two such policy conflicts. One was entirely averted through my own type of political maneuvering (to the great dismay of the department's acting assistant attorney general for legal counsel), and the other involved political appointees wanting to make greater disclosure, not less, which ultimately became the result.

But the process of agency functioning, however, became dramatically different almost immediately after Gonzales arrived. No longer was emphasis placed on accomplishing something with the highest-quality product in a timely fashion; rather, it became a matter of making sure that a "consensus" was achieved, regardless of how long that might take and with little or no concern that quality would suffer in such a "lowest common denominator" environment. And heaven help anyone, career or noncareer employee, if that "consensus" did not include whatever someone in the White House might think about something, be it large, small or medium-sized.

In short, the culture markedly shifted to one in which avoiding any possibility of disagreement anywhere was the overriding concern, as if "consensus" were an end unto itself. Undergirding this, what's more, was the sad fact that so many political appointees in 2005 and 2006 were so obviously thinking not much further than their next (i.e., higher-level) position, in some place where they could "max out" by the end of Bush's second term.

The day that I decided to retire, for example, was one on which I was asked to participate in a matter in which a significant part of the department's position was aiming to be -- there's no other word for it -- false. Briefly stated, someone in the White House had determined that it would be a good idea for an op-ed piece on the subject of government secrecy to be prepared, and although its subject matter extended beyond the Justice Department's jurisdiction in multiple respects, it was decided that the Justice Department's Office of Public Affairs would take on that task nevertheless. I was perfectly able to make several corrections and substantive improvements to a last-minute draft that I received but drew a line at even attempting to "improve" a Defense Department-related paragraph within it that was incorrect by a full 180 degrees.

Knowing what the facts of that matter actually were, I flatly refused to aid that part of the enterprise, pointedly observing that the Gonzales-era political appointee who was behind the draft did, in fact, to my own certain knowledge, know them as well. I suppose I can take some small satisfaction that the false part of that "final draft" was then entirely replaced with something that was at least arguably true, but that's hardly the point. (That political appointee, by the way, did indeed receive his promotion, but is no longer in Washington.)

[Editor's Note: The op-ed in question appeared in USA Today on March 13, 2006, and was titled "Committed to Being Open."]

Yes, it became quite clear that under Gonzales, the department placed no more than secondary value on the standards that I and my office had valued so heavily for the preceding 25 years -- accuracy, integrity, responsibility and quality of decision-making being chief among them. Had I stayed as director of OIP, I might have been working for a Monica Goodling protege by now.

Q: Are there any possible benefits to this "decision-making by consensus" approach?

A: Yes, but they accrue only to the participants in the process. Indeed, by operating in this way, they manage to avoid any singular responsibility for the result, or any part of it, which is another way of saying that they see themselves as running no risk of blame if anyone beyond the group has any problem with what they've done at any point.

After all, it was "the group" that did it (whatever that might be), and they achieved presumptively benign "consensus" (at all costs) before moving forward. You can imagine how important this is to someone whose primary interest in most any government action is to make sure that it doesn't somehow get in the way of securing that next (but not necessarily last) position before the end of a presidential administration. And remember that there's little downside to operating in this way if your basic view of government (in line with your inexperience) holds little respect for it in the first place. In other words, if it doesn't really matter so much to you how well or efficiently a government activity is handled, just so long as it eventually is handled, then the thinking is: Why not handle it in the way that most effectively minimizes personal risk? What this breeds, of course, is an utter lack of individual responsibility -- the very antithesis of good government.

Q: Do you see the department's decision-making weaknesses that you've just sketched out here as connected to its current problems with what it did on the U.S. Attorneys?

A: Certainly. You can clearly hear distinct echoes of this in the recent public statements of Kyle Sampson before the Senate Judiciary Committee. He described what to many listeners was an absolutely astonishing process by which he and a small group of others within the Justice Department handled the matter of U.S. Attorney replacement. By all accounts, no one person was in charge (Kyle described himself as merely the "aggregator"), it operated strictly by "consensus" (a word that he wielded as if it were an indisputably favorable one), and the end result was something that even he could not fully explain.

Yet it became the "groupthink" recommendation to the AG, an unprecedented "hit list" to be endorsed uncritically, as if it were something upon which Gonzales could rely without thinking. (And with nary a paper trail, by the way, which, I can tell you is no small consideration.) One might ask: Exactly whose dispositive decision was it to include the U.S. Attorney for the District of New Mexico (let alone the threshold question of why) on that final list? Was there really a good case for including U.S. Attorney John McKay of the Western District of Washington, whom I personally knew to have made tremendous contributions in the area of law enforcement information-sharing programs?

Conversely, could it really be so that, as Kyle testified, one U.S. Attorney (I won't repeat from where) actually was "saved" from being on the list merely because Monica Goodling happened to know of, and think well of, her work in a particular area? [Editor's Note: According to Sampson's testimony, that U.S. Attorney was Anna Mills Wagoner of the Middle District of North Carolina.]

Yes, this decision-making "process," if it even deserves to be called that, was no different than what I saw played out time and again, albeit on a different scale, during my last two years at Justice. And as I see it, from the vantage point of someone who has considerable experience in government decision-making in general and at the Justice Department in particular, the greatest and most damning dereliction is on the part of the person who knowingly permits such a "process" to exist on a matter of such public importance within the realm of his ultimate responsibility. Sure, it might induce that official to think (and even defensively say), "I was no more involved than that." But that never used to be good enough (or even minimally defensible) at the Justice Department prior to 2005. And that, as much as anything, should be impossible to defend now.

Q: Are we witnessing a deterioration of the department that can be explained in part by the fact that this is now the second half of a second term? What happens to a bureaucracy in this kind of period?

A: That's a particularly timely question, given that the time period that we've been discussing is the early days of a second presidential term. I'll now say something that might sound partisan, even coming from a purposely nonpartisan registered independent, but it's really not: In my experience over 11 presidential administrations, from Nixon I to what can be called Bush III, there is an unmistakable drop-off in overall appointment quality during a second presidential term -- and this definitely is more so during a Republican administration. Perhaps this is due to there being a lower quality of political appointees in Republican administrations to begin with, given that, by and large, they give up more than Democrats do to enter government service, especially with the post-Watergate ethics restrictions that all government officials face.

This observation is nothing new, by the way; one need only look at the relative ages and experience levels of comparable appointees in successive administrations to see it. So when you enter the second term of a Republican administration, you get the worst of all possible worlds: You actually see some influential political appointees who are, to put it bluntly, too subject-matter ignorant to even realize how ignorant they are. (This is assuming that, if they knew, they'd actually care.)

And compounding this, as mentioned earlier, is the strong drive of political appointees at all levels (perhaps more so if they are attorneys, whose background is amenable to legal positions throughout the executive branch) to obtain that maximum capstone position before the second term ends. What happens to bureaucracy at such a time is that it becomes sluggish to the point of constipation, driven only by expediency as gauged from a political or personal agenda, and it sometimes yields some truly mind-boggling results, such as the current U.S. Attorney nightmare.

Speaking of which, this second-term drop-off, so to speak, has much to do with the U.S. Attorney situation, both as to the replacement decisions themselves and also how they were implemented. It is clear by now that the department -- and, perhaps more than anyone, Deputy Attorney General Paul McNulty -- was grossly disserved and betrayed by the relatively young aides who participated in that "consensus process" from its very beginning. To those who know the players involved, it's not hard to see how frictions could develop between such high-level Main Justice staffers and the U.S. Attorneys whom they attempted to "oversee."

On one side, you had hard-nosed prosecutors who, for the most part, already had several years' experience under their belts (with little micromanagement from Ashcroft's people) and knew what they were doing already. On the other side, you had political aides who, among other things, had precious little management experience for their positions and were not necessarily adept at playing well with others, even when those others were political appointees like themselves. One need look no further than the extensively disclosed e-mails from Kyle Sampson, Mike Elston [chief of staff to McNulty], Monica Goodling and [Deputy Associate Attorney General] Will Moschella to get a clear picture of this.

Does this mean that at least some of the eight replaced U.S. Attorneys made the list because they failed to get along in a sufficiently deferential fashion with such Main Justice appointees? I'd certainly bet the oldest of my two cars on it, perhaps even the newer one, based upon what I've seen over the years and what I've read in e-mail form more recently. And it surely follows from everything else I've observed that in such a situation, even with the presumed cover of "consensus" decision-making, such appointed aides would scramble mightily, in the most derisive of terms (captured only partially on the disclosed e-mails), to castigate the U.S. Attorney victims of their management inexperience, lest they themselves be held to blame.

And that then, with little sense (of irony or otherwise), they would proceed to publicly tarnish the reputations of several U.S. Attorneys while in the next breath redacting records based on an asserted need to "protect their (i.e., the U.S. Attorneys') privacy." Even putting such callousness and privacy violations aside, and moving swiftly past the image that they "eat their young," it is painfully clear that these political aides got carried away again and again.

This is the type of thing that a second term at its very worst can bring -- though I remember well that even the second Reagan administration, for all its flaws, was never quite as bad. And it cannot help but reflect disastrously on the person sitting at the top of that heap -- who either knew of this and at a minimum tacitly condoned it or else turned a fatally blind eye to it through overdelegation to underlings because he just didn't care (and take care) nearly as much as an attorney general should. Either way, it's hard to see how anyone could ever place trust in such a situation again.

Q: How would you describe the morale in the department when you left, and since you have left (among career people especially)?

A: I won't presume to speak for the noncareer appointees at Justice when it comes to morale (though I have a good basis for doing so), but I certainly can say that morale among the career ranks, especially the more experienced folks, is as low as you would expect it to be.

You have to remember that this is a Cabinet department that, for good reason, prides itself on the high-quality administration of justice, regardless of who is in the White House. Ever since the Watergate era, when Edward Levi came in as attorney general to replace former Sen. William Saxby soon after Nixon resigned, the Justice Department maintained a healthy distance between it and what could be called the raw political concerns that are properly within the White House's domain. Even Reagan's first attorney general, William French Smith, did not depart greatly from the standard that Levi set; as for Meese, I knew him to be more heavily involved in defending himself from multiple ethics investigations than in bringing the department too close to the White House, even though he came from there.

More recently, of course, the DOJ-White House distance hit its all-time high-water mark under Janet Reno, especially during Clinton's second term. And even John Ashcroft made it clear to all department employees that, among other things, he held that traditional distance in proper reverence; he proved that this was no mere lip service when, from his hospital bed, he refused to overrule Deputy AG Comey on what is now called the "terrorist surveillance program." Especially in the wake of 9/11, which strongly spurred the morale and dedication of Justice Department employees, myself included, I saw only a limited morale diminution in general during the first term.

But that strong tradition of independence over the previous 30 years was shattered in 2005 with the arrival of the White House counsel as a second-term AG. All sworn assurances to the contrary notwithstanding, it was as if the White House and Justice Department now were artificially tied at the hip -- through their public affairs, legislative affairs and legal policy offices, for example, as well as where you ordinarily would expect such a connection (i.e., Justice's Office of Legal Counsel). I attended many meetings in which this total lack of distance became quite clear, as if the current crop of political appointees in those offices weren't even aware of the important administration-of-justice principles that they were trampling.

This matters greatly to Justice Department employees of my generation. They are now the senior career cadre there, with the high-grade institutional knowledge that carries the department from one administration to the next, and when they see a new attorney general come from the White House Counsel's Office with a wave of young "Bushies" in tow and find their worst expectations quickly met, they just as quickly lose respect for nearly all of the department's political leadership, not to mention that leadership's "policy concerns." That respect is a vital thing, as fragile as it is essential, and now it's gone.

Q: In your view, what needs to be done to repair the department?

A: Based upon my experience, it's very hard to imagine how the department can viably move forward now without a Watergate-style repair. By that I mean the appointment of a new attorney general, one who by reputation, background and temperament is well-suited to at least begin the process of restoring the department's previous reputation for political independence and the reliably even-handed administration of justice.

With that, and the necessary "woodshedding" of any future political aides who might be inclined to allow their inexperience to overcome their boss' better judgment, the department's external standing would rise, and in time, its internal morale problems would begin to solve themselves. At bottom, the Justice Department is a tremendously satisfying place to work, especially in a post-9/11 world. I'm optimistic that it will bounce back from this in time, just as it did in the mid-1970s. After all, if the past two years have shown anything, it's that much can change in a surprisingly short period of time.

Q: On the secrecy/FOIA front, I think there's a general assumption that the first impulse of all governments is to conceal. Is that true, and how did you deal with that attitude as you sought to oversee implementation of a law such as FOIA?

A: Yes, that is indeed the first impulse of virtually any government -- or large institution, for that matter. Think of it as simply a macrocosm of individual human nature -- would you want "your" information made public if you could easily avoid it? But I think that one has to be very careful with a word such as "conceal," as it suggests some surreptitiousness of a type that might be highly questionable and even wrongful. The overwhelming bulk of government information nondisclosure has nothing even remotely to do with "concealment" or anything improper.

The very fact that a law such as the FOIA has several robust exemptions from disclosure -- for items of personal privacy, business confidentiality and law-enforcement sensitivity, for example -- stands as testament to the fact that many government records, in whole or in part, cannot be publicly disclosed without causing unwarranted harm.

That said, I agree completely that a major part of any FOIA officer's job, or the role of someone like me who works to lead them in the right direction, is to firmly grapple with this problem attitude -- an attitude that can quickly become ingrained within the culture of any part of an agency, sometimes on four-year cycles as a new president (either Republican or Democrat) comes into office.

I think the best approach is to confront this attitude directly -- to explicitly acknowledge it as an immutable aspect of both human and institutional nature and, in so doing, to attack it head-on. Someone who blatantly resists a legal requirement such as the FOIA is not unlike a bully, I've found, and the best response to that can be a verbal two-by-four across the bridge of the nose. This works more often than you might imagine, even with new political employees. My former colleague Dick Huff, who was a colonel in the Army Reserve, sometimes liked nothing more than to explain to a general or an admiral in no uncertain terms that his or her information-withholding inclinations were violative of the law and just could not properly be carried out.

Though I've been dealing with information policy and the FOIA for more than 30 years now, I didn't have the dubious pleasure of trying to "re-culturize" the federal government upon the FOIA's enactment in 1966. But I've given advice to nearly 100 other nations and international governing bodies worldwide as they've considered enacting and then implementing their own versions of our FOIA. The United Kingdom is a good case in point, as it recently implemented its FOIA counterpart (in a radical departure from the tradition of its Official Secrets Act) by broadly applying it to more than 100,000 distinct governmental units, at all levels of its government.

In meetings with the Lord Chancellor's Office over there, and subsequent speeches in London and elsewhere in England, I advised the U.K. (as well as many other nations) to strive to capture the attention of its civil servants (not to mention its political class) by expressly recognizing that implementing its new law would involve a massive "culture change" within all government circles, and that this was exactly what the law was designed to bring about. The one major drawback of this, though, comes into play whenever a civil servant can reasonably conclude that his or her government has failed to provide anything even close to enough funds to meet such new legal requirements. If that happens, then agency employees tend to lose basic respect for the law, and no amount of hortatory admonition can completely overcome that.

Q: In the current administration, there has been a memo that was seen as anti-FOIA, then an executive order that seemed to point in the other direction. How did that seeming contradiction come about?

A: Well, the short answer to that is, first, that there is no real "contradiction," in that the Ashcroft FOIA memorandum and the FOIA executive order address two distinctly separate parts of FOIA administration. The former, which replaced Janet Reno's counterpart memorandum in 2001, sets the current administration's policy emphasis for FOIA-exemption decision-making (i.e., as a matter of substantive policy), whereas Executive Order 13,392, issued in December 2005, speaks to procedural FOIA matters such as timeliness, backlog reduction, request tracking and the proper treatment of FOIA requesters.

If they are seen as pointing in different directions, then that most likely is because the former, as a replacement for Janet Reno's more "liberal" policy memo, is viewed most simplistically as therefore an "anti-requester" document, while the executive order certainly appears on its face to be "pro-requester" in so many respects.

But there is more to the story than that. It's no secret that this first-of-its-kind FOIA executive order was issued in the context of proposed FOIA-amendment legislation -- media-sponsored bills that were introduced on an atypically bipartisan basis -- and that it served as enough of a countermeasure to forestall full action on those potent bills during the last Congress. I surely had no illusions to the contrary as I nonetheless worked very hard to vigorously implement that executive order from the day it was issued until the time of my retirement on Jan. 3. But would it have been issued by this administration in any other situation, or for any other purpose? I know of no one, inside of government or out, who would credibly assert that. So if this helps explain any residual "contradiction" that is perceived here, then there you have it -- at least in its short version.

Q: Did you ever feel you were pressured in the Bush administration (or any previous one) to perform your FOIA work to serve the administration's political agenda?

A: This answer might surprise many people, but in the 25-year history of OIP from 1981 through 2006, there were only three instances in which it was overruled by the political appointees for whom I worked -- and, actually, two of those three situations (one of which was in a Republican administration) resulted in greater disclosure than I thought was appropriate as a matter of law and sound policy. There was only one time in which an attorney general decided to take a matter out of OIP's hands in order to withhold information that otherwise would have been disclosed, and that was during the very early 1980s.

With that said, it is important to note two key parts of this question: the words "pressured" and "political." Together, they connote something nefarious at play, which could give a false impression. There truly is nothing wrong with any administration (or new Justice Department leadership within an administration) determining what that administration's policy agenda will be in an area like the FOIA -- so long as it is within the proper bounds of the law -- and it is not undue "pressure" to expect that career professionals will do their best to craft and implement such policies as strongly as an administration desires. Against this backdrop, I can say that, at least during my quarter-century of leading governmentwide FOIA policy, nothing quite so blatantly nefarious occurred.

Two further caveats are necessary here, however: First, I made a practice of determining, in advance, what I thought was a reasonable policy line for whatever administration was coming into power. Hence, when I conceived the "foreseeable harm" standard of FOIA-exemption decision-making for Janet Reno in 1993, she adopted it, rather than having to push OIP in that direction herself. The same was true even of the much-reviled Ashcroft FOIA memorandum in 2001, which, to my pleasant surprise, was accepted by him exactly along my proposed policy lines, even with the suggested "sound legal basis" standard, going further in the direction of openness than any previous Republican administration had ever gone.

Second, candor compels me to acknowledge that there in fact was a situation in which, rather than being asked to do something for purposes of a political agenda, I surely was asked to refrain from doing something quite ordinary for a reason that I later learned (and earlier had surmised) was indeed very much a "political" type of agenda. That situation does stand apart in my government experience, but I will refrain from saying anything more about it here, other than that it did occur during the early months of 2005.

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