FW: A Chilling Article from the Village Voice

["Craven, Jim" <jcraven@xxxxxxxxx>]

  Week of June 19 - 25, 2002


                   Mondo Washington
                   by James Ridgeway

A Small Cartel of Conservative Lawyers Rewrites the American Rule
                   Court Jousters


Behind the Bush Administration's attack on civil
rights in the name of war lurks the network of attorneys
crafting laws for a new America.

Their hodgepodge of rules and statutes either now or
soon will remake the nation, providing local police with
sweeping federal authority, pushing the military and
CIA directly into everyday domestic politics, and
sanctioning indefinite detention without a charge or
even a court hearing. Immigration policy already has
disintegrated into the random search and arrest of
anyone with dark skin. College students are to be singled
out on the basis of ethnic background and required to
carry special identity papers. In the rather near future,
all citizens will be registered in a national
database that includes criminal records, welfare payments,
delinquent loans, credit card debt, and so on.
Committees of local vigilantes are on the way to being
sanctioned as legitimate militias assigned to root
out terrorists, just as the Ku Klux Klan was after the Civil War.

These are not distant ideas out of George Orwell, but
real laws and practices about to be put in place.

The underpinnings of this new America rest in the
hands of a fairly small group of conservative lawyers in
Washington. There is nothing sinister about them, per
se, but they frame the arguments and devise the legal
mechanisms that, for example, allow the president to
make war against Iraq without any meaningful consent
from Congress. These intense, smart ideologues hail
from the right-wing revolutionary movement, which
believes it's past time to take America back from the
crummy, weak-kneed liberal elites. Their moment has
finally arrived.



Among the attorneys in this Bush brain trust are
three key players:

Viet Dinh, an assistant attorney general in the
Justice Department's Office of Legal Policy, is without question
the leading figure in laying the legal fretwork for
the war. Dinh graduated from Harvard Law, clerked for U.S.
Circuit Court of Appeals judge Laurence H. Silberman
and Supreme Court Justice Sandra Day O'Connor, and
now teaches at Georgetown University. He was
associate special counsel to the U.S. Senate Whitewater
Committee, which fought unsuccessfully to bring down
the Clintons. Born in Vietnam in 1968, Dinh was soon
separated from his father, who was sent to a post-war
retraining camp. His mother took the children and
escaped on a crowded raft, traveling 12 days to
Malaysia, where she purposefully sank the boat and made her
way to freedom.

Despite having entered the U.S. as a refugee at the
age of 10, Dinh has emerged as a hard-liner on the
administration's 9-11 dragnet. What he says counts.
Here he is in Naples, Florida, at a mid-January American
Bar Association conference, setting the line on
detainees. "We are reticent to provide a road map to Al Qaeda
as to the progress and direction of our investigative
activity," Dinh said. "We don't want to taint people as
being of interest to the investigation simply because
of our attention."

He added, "We will let them go if there is not enough
of a predicate to hold them. But we will follow them
closely, and if they so much as spit on the sidewalk,
we'll arrest them. The message is that if you are a
suspected terrorist you better be squeaky-clean. . .
. If we can, we will keep you in jail." In the wake of
September 11, some 2400 Muslim men currently sit
behind bars, many on minor or no charges. The
government waits for the guilty to break down and
talk. For the innocent, it's their tough luck.

How did officials pick their suspects? "By the
criteria Al Qaeda itself uses," he said. "Eighteen- to
35-year-old males who entered the country after the start of
2000 using passports from countries where Al Qaeda has a
strong presence."

As for liberal complaints about discrimination, Dinh
was blunt: "The U.S. does use racial profiling-not for
identification, but for investigation."

The second most important figure is Timothy E.
Flanigan, deputy White House counsel and deputy assistant to
the president. Chief counsel Al Gonzales may be a
Bush favorite for the Supreme Court, but Flanigan is the
designated hitter. Since he's tight with GOP House
Majority Leader Dick Armey, Flanigan will be the one the
administration depends on to make the risky Homeland
Security department a reality. Through Armey, he'll
look to cut enough pork-barrel deals to retain the
support of libertarian-minded members concerned about
civil rights and thus keep the tiny Republican
majority intact.

Flanigan's conservative credentials are impeccable.
After graduating from Brigham Young and the University
of Virginia Law School, he served as an assistant AG
in the Office of Legal Counsel under Bush the elder. Hours
after the voting stopped in Florida two years ago, Flanigan
hit the ground, organizing the legal attack for Bush. He
worked in tandem with now solicitor general Ted Olson
arguing Bush v. Gore in Supreme Court.

Flanigan is one of those tireless grunts who made up
the Reagan right. It was Flanigan who scoured the Clinton
passport files for dirt. He backed Ken Starr, calling him
"moderate." The father of 14 children, he opposes abortion.
Like so many other Bush legal minds, he's a member of the
Federalist Society, which gave him over $700,000 to
write a biography of Chief Justice Warren Burger. According to
press reports, Flanigan wants the return of the imperial president,
arguing in one memo that the commander in chief doesn't have to
enforce laws he doesn't like.

Third man on the list is a real backroom player: Jim Haynes, 43,
Pentagon general counsel and Defense Secretary Rumsfeld's
chief legal adviser. Haynes has served as a vice president of
General Dynamics and was the army's general counsel under the
original Bush. Plainspoken like Rummy and no-nonsense, he's
especially important because he worked in the Pentagon during
the Gulf War and knows how to adapt to fast-changing situations
on Washington's political front. And he's had experience in
Central Asia, developing small businesses as part of a relief
project in oil-rich Kazakhstan.

Haynes drafted the outline for the Bush administration's military
tribunals, which will try suspected terrorists. They require that
only the presiding officer be from the judge advocate, with the
other jurists being "competent and educated people." In describing
the commission, Haynes said, "Well, there are some similarities to
Nuremberg and there are some dissimilarities to Nuremberg. These
procedures are, frankly, much more detailed, and in many respects
are more generous than what was done at Nuremberg."

Haynes knows his place. "My agenda is driven by the secretary of
defense," the low-key Harvard grad has said. "He is a very
energetic man, and I just try to keep up with him. Hopefully I'm a
little ahead of him from time to time."



These three lawyers are at the vanguard of the legal attack, but
they are scarcely by themselves. Rather, they're part of a
loose, extensive team of conservative lawyers who have collected
here over the years. Some have clerked for justices Scalia and Thomas.
Some learn about liberals by working in their midst as "counter clerks."

They mostly know each other, sometimes from Harvard Law. Several of them,
like deputy AG John C. Yoo, also share the experience of having
clerked for conservative D.C. Appeals Court judge Silberman. Just about
everybody seems to have some attachment to the Federalist Society
and, when it comes to policy matters, the Heritage Foundation, whose
links to the administration and conservative lawmakers are preeminent.

The Federalist Society is often pictured in the liberal media as some
sort of darkly sinister cesspool of conservative thought. Conservatives
more often view it as their own ACLU. "It's certainly not some kind of
a pipeline into the hearts and minds of decision makers,"says David Rivkin,
a D.C. attorney in private practice whose work appears on the Federalist
Web site.

Of all the Federalist members, perhaps the best known is Solicitor General
Olson. An assistant attorney general under Reagan, Olson has
popped up at just about every event in D.C. since then, defending convicted
spy Jonathan Pollard, representing Starr, advising Paula Jones and
Monica Lewinsky, and supposedly taking part in the infamous Arkansas
Project,
which tried to link Clinton to mob dope runs from Central America into Mena,

Arkansas. Olson has denied any connection. He is perhaps most famous for
this
statement: "There are lots of different situations when the government has
legitimate reasons to give out false information."

Ruth Wedgwood, a Yale law professor, currently serves as a Bush flack on
legal matters, appearing here and there, especially on Jim Lehrer's
terribly correct NewsHour. Civil rights? No problem, says Wedgwood, as in
this smart analysis of the situation after Chicago thug Jose Padilla was
arrested: "So your dilemma is, do you want to let folks go when you have
good intelligence that they are involved in such things as terrible as a
dirty bomb that would really destroy city blocks and thousands of people's
health, or do you want to simply . . . treat it in a criminal-justice
paradigm alone? You have to make a choice, really, between evils here,
I think."

"Civil liberties aren't in any grave danger. We all
need to relax about this."
-jurist Robert Bork, Voice interview, June 14, 2002


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