The biggest surprise I’ve had in this job is how much time the national-security issues take. Those are the primary things that I have to deal with in a post-9/11 world. From an eight-thirty meeting every morning, to the threat screen for the last twenty-four hours, to meetings during the course of the day. And almost inevitably there’s something that I take home at night that is national-security related. Our National Security Division didn’t even exist when I was last here!
Eric Holder is a decent man. Many of the attacks on him during his tenure have been scurrilous and I don’t want to join them or give the “Fast and Furious” crowd aid and comfort. That said, this quotation, which Holder gave to GQ magazine, is instructive as to some of the important deficiencies in his tenure as attorney general. And it is instructive as well about the qualities of the person who should replace him.
Holder came into office with the stated priority of restoring the department’s Civil Rights Division. He was, by his own account, surprised and unprepared for the degree to which national security issues now dominate his job. Many of the problems of his tenure stem directly from this lack of tactile familiarity with national security matters: from the bungled effort to bring the 9/11 conspirators to New York, to the announcement that he would seek legislative tweaks to Miranda requirements and the subsequent abandonment of that idea, to his public disparagement of military commissions, to his nearly complete absence from the discussion of signals intelligence programs that his department oversees and represents in court. The list goes on and on. Holder has never found his footing on national security matters.
The nature of the job of attorney general has changed—irrevocably. And we should never again have an attorney general, of either party, capable of expressing surprise at the role that national security issues now play in the life of the Justice Department or in the role of its chief. We should never again have an attorney general capable of saying virtually nothing as the law of major intelligence programs and the integrity of his department’s work in overseeing these programs are assailed over a protracted period of time.
The next attorney general, rather, should be someone with granular experience in the national security space, someone capable of charting a course between the wild pendulum swings of public opinion, which demands simultaneously and unselfconsciously that we do far more against ISIS while doing far less intelligence collection.
Several of the options supposedly under consideration by the White House—to one degree or another—meet that criterion. In particular, Preet Bharara has a great mix of relevant experience. Others, however, manifestly do not. Kamala Harris? Jennifer Granholm? Tom Perez? Sheldon Whitehouse? Really?
Here’s a suggestion I haven’t seen yet in the press that the White House ought to consider very seriously: David Kris.
The White House thinks hard about political constituencies in making senior-level appointments and there’s nothing wrong with that. These considerations, however, do not favor Kris. Nothing can acquit him of the iniquitous crime of being a white guy, for example. Nor does he appeal in other politically useful ways to particular constituencies—other than national security professionals, that is. But Kris, who served as assistant attorney general for national security earlier in the administration and is widely respected in both parties, would be easy to confirm. And more importantly, his career reflects a unique mix of deep academic thinking about security and law and practical management of bureaucracies that have to do national security under the rule of law. Kris is a good friend, so you can take my opinion on this with a grain of salt if you like. But nobody knows more. Nobody has better, steadier judgment. Nobody, in short, is less likely to be caught flat-footed by the role that national security has come to play in the life of the department and its leader.
This essay was cross-posted at Lawfare. Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution.