The fight over the government’s top national security lawyer.
- By Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal.
In September, President Obama nominated John Carlin, a career federal prosecutor, to run the Justice Department’s National Security Division, a senior post whose occupant plays a key role in authorizing secret surveillance operations and managing national security investigations. It was a controversial pick. Not only did some of Carlin’s peers think he wasn’t the most qualified candidate. Attorney General Eric Holder — the man who was supposed to be Carlin’s boss — hadn’t supported him. Several former officials told Foreign Policy that the attorney general "strenuously" objected to nominating Carlin.
But Carlin had the backing of two senior officials in the White House, who had made it known that he was their preferred choice. In the end, their candidate won out, prompting several former law enforcement and national security officials to decry the nomination as an act of undue political influence over law enforcement decisions.
"I think it is extraordinary and unusual to have someone forced upon an attorney general over his objections," said one former law enforcement official. "The independence of the Justice Department from the White House is institutionally important." Decisions on which cases to prosecute and how to manage criminal investigations are supposed to be made free of political considerations.
Holder had his own list of candidates, which included another career prosecutor who had been his adviser on national security issues and had years more experience than Carlin working on terrorism and espionage cases, officials said. Holder didn’t know Carlin well and hadn’t worked closely with him.
Ultimately, the decision on whom to nominate for the position is the president’s alone. And Holder has since embraced Carlin — at least in public. But the rocky path to Carlin’s nomination, described in interviews with a dozen current and former Justice Department and administration officials, reveals a tense personal and political struggle over one of the most important national security positions in the government.
Carlin’s biggest advocates in the White House were Kathryn Ruemmler, the White House counsel, and Lisa Monaco, the president’s homeland security and counterterrorism adviser, according to current and former officials. Ruemmler and Monaco had worked with Carlin at the Justice Department and in the U.S. Attorney’s Office for the District of Columbia, where all three served at the same time as prosecutors.
Former officials said they are concerned that Carlin, who has been acting in the position since March, 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 individuals drew 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.
"It shouldn’t be that way," said a former government official who doesn’t support Carlin’s nomination. "There should be some walls between the Justice Department and the White House. The White House should not have a direct feed."
Former officials could not point to a specific instance in which Carlin had bowed to White House influence or shared information with Monaco before talking to the attorney general. But they said his close relationship with Monaco has created an impression among many national security lawyers in Washington that Carlin is the White House’s inside man at the Justice Department. Carlin became the acting director of the National Security Division after Monaco left the post and went to the White House. He was the chief of staff when she ran the division.
The concerns about Carlin’s independence run deeper than that, however. Two former officials, citing conversations with current Justice Department employees, said that Carlin is avoiding taking documented positions before his Senate confirmation hearing. Instead, Carlin has requested that colleagues not copy him on emails about sensitive policy issues. Many of Carlin’s communications are taking place by phone, former officials said. A date for a confirmation hearing hasn’t been set.
Carlin is not without experience in national security, and he has some of the same credentials as his predecessors in the job for which he’s been chosen. He was once chief of staff to former FBI Director Robert Mueller, for example. And he has held two senior posts in the National Security Division.
But 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. Carlin has spent the bulk of his career on computer crime and intellectual property cases, and in prosecuting homicide, sexual offenses, and public corruption, according to his official resume.
By contrast, one of the candidates that former officials say ranked high on Holder’s list is Amy Jeffress, who until recently was the department’s legal attache in London. From 2009 to 2010, Jeffress was Holder’s counselor on national security and international matters, advising him on some of the highest-profile cases in the Justice Department. She worked with Holder to bring a criminal case against Khalid Sheikh Mohammed, the accused mastermind of the Sept. 11 attacks, whom Holder wanted to try in a federal court. (Congress later blocked the move.) Jeffress also set up three inter-agency task forces that reviewed cases of detainees at Guantanamo Bay. She worked for thirteen years in U.S. Attorney’s Office for the District of Columbia, where she was chief of the National Security Section overseeing terrorism and espionage cases.
In the contentious nomination process, the balance finally tipped in Carlin’s favor when Holder received a phone call from FBI Director Robert Mueller, Carlin’s former boss. "Director Mueller weighed in both at [the Justice Department] and at the White House in strong support of John’s nomination," said a senior administration official. After the call, Holder dropped his objections to Carlin. President Obama announced his nomination on September 10.
The tussle over Carlin’s nomination has had more than just political or personal consequences. In the eight months he has been serving in an acting capacity, Carlin has not been legally able to sign off on surveillance requests before the Foreign Intelligence Surveillance Court, the body that approves secret intelligence-gathering conducted by the FBI and the National Security Agency. Until Carlin is confirmed, Holder and James Cole, the deputy attorney general, have to pick up the slack, because they are the only other department officials authorized to review and sign off on the orders.
Surveillance operations have not lapsed as a result, but given the pressing demands of their jobs, it has been harder to find time to sit down with Holder or Cole to get their approvals, a Justice Department official said. One of them has to review and receive a briefing on each application, which can take as little as five to ten minutes. But those minutes add up. Last year, the government made 1,856 requests to the court for permission to conduct electronic surveillance or physical searches for foreign intelligence purposes. Figures for this year have not been compiled.
But Carlin is still able to perform many of the duties of the position, including consulting with the White House, the FBI, and intelligence agencies. The National Security Division was created in 2006 to tear down barriers betwee
n law enforcement and intelligence personnel that had kept them from working together. Today, the law allows White House officials to stay in closer contact with career prosecutors than they would on criminal cases, where barriers are placed to ward against political influence.
"Of course the President’s Counterterrorism Advisor and all of her operational counterparts, including at DOJ and FBI, are in regular touch," said Caitlin Hayden, a White House spokesperson. "It is the CT [counterterrorism] Advisor’s job to make sure that the interagency is coordinated."
Kenneth Wainstein, who served as the head of the National Security Division and the White House counterterrorism adviser during the Bush administration, said, "It’s absolutely critical that the assistant attorney general for national security, who is the head of the intelligence and national security element of the Justice Department, be centrally involved in the interagency process that is run out of the White House."
Wainstein, who knows both Monaco and Carlin, said he could not speak to the nature of their communications today. But he said it would be expected that they’d have frequent conversations and correspondence, including about criminal investigations and intelligence operations, as well as policy. "It’s critical for both the effectiveness and the constitutional integrity of our national security program that the Justice Department have a strong voice in the policymaking process," Wainstein said.
In the months since he’s been nominated, whatever distance there may have been between Carlin and Holder seems to have shrunk a bit. Another Justice Department official said that the week before Thanksgiving, Carlin invited Holder to address an all-hands meeting at the National Security Division. The attorney general praised Carlin’s leadership and the work of its employees. The division has been under unusual pressure and scrutiny amid investigations of global surveillance operations by the NSA and the FBI, revealed by Edward Snowden.
The official also said that Holder brings Carlin with him to weekly principals meetings in the White House Situation Room, where the top members of the president’s national security team are allowed to bring one member each from their staff.
"He’s a tremendous attorney and a strong leader, and is highly regarded in the intelligence community," Matthew Olsen, the director of the National Counterterrorism Center, told Foreign Policy. "He brings a wealth of legal, policy, and national security expertise to the position, and I think he’s a terrific choice to lead the [National Security Division]," added Olsen, a former general counsel at the NSA, who was also the acting head of the National Security Division during the presidential transition in 2008.
Among those who have written letters to the Senate Judiciary Committee in support of Carlin’s nomination are Tim Murphy, the former deputy director of the FBI; Pat Rowan, the former head of the national security division under President George W. Bush; and Michael Morrell, the former deputy director of the Central Intelligence Agency. Morrell wrote that he’d mostly worked with Carlin during meetings of deputy officials on the National Security Council at the White House, where Carlin was a "backbencher" or stood in for Monaco when she couldn’t attend. "He was always prepared, he was articulate and persuasive when he spoke, and he asked excellent questions of the other participants," Morrell wrote. "In addition to his performance, Mr. Carlin certainly has the experience required to do the job."
Hayden, the White House spokesperson, said "We look forward to the Senate confirming [Carlin] as soon as possible."