Oregon Public Broadcasting

Confirmation hearings are scheduled for Thursday for Eric Holder, Barack Obama’s choice for Attorney General. Assuming he’s confirmed, a hairy tangle of counterterrorism issues awaits him.

April Baer reports on some of the challenges facing the Obama team, and the legal legacy of the Bush administration.

This year’s changeover at the U.S. Justice Department has the potential to spark a legal fireworks display. Norman Williams heads the Center for Law & Government at Willamette University.

Norman Williams: "Not only do you have a transition between different political parties, but you have a transition between one administration that has had a very specific approach to counterterrorism, and a new administration that campaigned on how differently it would approach some of those issues.”

The Obama administration will be in a position to revisit many of the counterterrorism issues that became the biggest fights of the Bush administration: how suspects could be charged, how the assets of suspected terrorists should be treated, how the government can gather evidence.

There’s one Oregon case that tests several of the major issues.

In 2003, the Al-Haramain Islamic Foundation of Oregon was branded   as a sponsor of terrorism. The now defunct charity is  the subject of several lawsuits. 

Portland attorneys Steven Goldberg and Ashlee Albies are on the legal team trying to prove the charity was the target of illegal warrantless wiretapping. The team got a break recently, when a judge allowed them access to a key classified document.  But they’re also wondering  if and how an Obama-era Justice Department will continue to fight them.

Here’s attorney Ashlee Albies.

Ashlee Albies    “I think there’s been a number of public statements made by the incoming administration members, that they don’t approve of the Bush administration with regards to the warrantless wiretapping program. I would hope they’d re-evaluate their position and allow there to be a legal determination that the executive branch does not have the authority to conduct warrantless wiretapping in this manner.”

The Justice Department declined to comment, but legal observers note that the case could put the Obama administration in a very awkward position.

Last summer Congress acted to grant the President expanded wiretapping powers -- the same powers plaintiffs are trying to strike down in the Al-Haramain case. If the court decides Al-Haramain was illegally surveilled, the Obama administration would be under pressure to give up those expanded powers, or at least review their worth.

Steven Goldberg: “Our concern is perhaps somewhat less with the Obama administration."

Attorney Steven Goldberg.

Steven Goldberg: “Our concern is with the Constitutional principal that’s at stake in this case.  Unless there’s a judicial determination that that kind of behavior by a president, by an administration, cannot be tolerated, then we really haven’t succeeded in the litigation.”

Al Haramain is far from the only battlefield over the legality of executive power. 

Oregon’s Senator Ron Wyden has spent the last several years advocating for a re-examination of U.S. interrogations. Right now, he’s hoping the Obama administration will help him get information on CIA prisons declassified.

Ron Wyden:  “It seems to me it’s important to resolve this discussion -- you come clean about what happened during the Bush years. The documents I would like to see declassified are ones that pertain to the history of the program. Documents that go to the effectiveness of these enhanced interrogation techniques, and what the legal authority was.”

But Wyden says he doesn’t know what the President-elect thinks about the issue. He expects to discuss it shortly with Leon Panetta, the man Obama wants to head the CIA. 

Obama said in a broadcast interview last weekend he’s still evaluating how to deal with interrogations and detentions. He indicated he would probably not call for an investigation of  how the Bush administration handled such matters.

Given the gains the Bush administration made in broadening executive power over the past eight years, it may have been inevitable that the pendulum of legal review would start to swing the other direction.

Steven Kanter is a professor of constitutional law at Lewis and Clark College. He says even if the first hundred days don’t bring spectacular change, he thinks the Obama administration will ultimately give up some executive power.

Steven Kanter   “There are going to be some easy things that will get reversed quickly. At the more detailed level, there’s going to have to be a bottom-up, top-down look at how things go across the entire National security apparatus.”

Many observers expect some quick action toward the  closing of  Guantanamo Bay.  And prosecution of terrorism suspects may also be up for review. But no matter how far he goes with intelligence or counter-terrorism reform,  President-elect Obama is sure to be under constant pressure to show he’s making public safety his top priority.