Court Jousters

A Small Cartel of Conservative Lawyers Rewrites the American Rule

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


Additional reporting: Caroline Ragon, Cassandra Lewis, Gabrielle Jackson, and Joshua Hersh

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