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For the post-Alberto Gonzales Justice Department, many observers hope for more than a placeholder attorney general, but fear that may be all they get. Simply flushing the department of the politics that have permeated its upper ranks, or ending the exodus of experienced front-line prosecutors, would be enough for many. But lawyers and academics who follow the department say there are areas in which changes are to be expected. They also say there are areas that need to be reformed quickly to restore confidence in the department. These include domestic spying, handling of terror suspects, white-collar prosecution, death penalty review and immigration policy. “Two things that I think could be dealt with by a new attorney general would be: to order the FBI to conform to what a majority of law enforcement agencies do around the country � tape and record confessions,” said Paul Charlton, one of eight U.S. attorneys whose firing sparked the Senate investigation of Gonzales. “The second is a top-to-bottom look at who we decide to execute and a review of the process,” said Charlton, now an attorney with Gallagher & Kennedy in Phoenix, who handles Indian law and corporate immigration compliance. Under former Attorney General John Ashcroft, the process worked well, he said. But under Gonzales the procedures for review “were grossly ignored,” said Charlton. He clashed with Gonzales over a death penalty case. Charlton said there was little forensic evidence and no body. Investigators believed they knew it was buried in a landfill outside Phoenix, but were denied the funds by Gonzales to exhume it. “You can go forward with a prosecution without a body, but it would be wrong to seek the death penalty when you know where the body is, but don’t want to spend the money to exhume it,” he said. A change in tone Whether acting Attorney General Paul Clement remains in the job for an extended period, or a new candidate is put forward quickly, “You will not see a marked change in the policy orientation,” predicted Michael Dorf, constitutional law professor at Columbia Law School. What should be expected is a change in tone, Dorf said, “a tone that emphasizes the department’s historic tradition of professionalism and nonpartisanship, as opposed to treating the department as part of the political wing of the White House.” One of the most heated disputes between Congress and the Bush administration has been an outgrowth of the war on terror: the treatment of terror suspects, the alleged misuse of national security letters and the domestic use of warrantless wiretaps. A new attorney general “must put protocols in place that the Department of Justice and the Congress will be comfortable with,” said Laurie Levenson, criminal law and ethics professor at Loyola Law School in Los Angeles. The issues of the potential closure of the Guantanamo Bay terrorist detention facility and its prisoners’ access to federal courts loom in the future. The Justice Department appears to have done nothing to deal with a potential U.S. Supreme Court ruling giving Guantanamo Bay prisoners access to U.S. courts, said Carl Tobias, professor at University of Richmond School of Law in Virginia. “If they close Guantanamo and bring prisoners here, what will they do? There is no courthouse being built outside Leavenworth,” he said. Lingering tension between members of Congress and Gonzales over his honesty and competence at the helm in the wake of the abrupt firing of the eight U.S. attorneys last year should not be allowed to infect a new attorney general, according to Rachel Barkow, a professor at New York University School of Law. The controversy that spawned the rift needs to be resolved, she said. Setting priorities In other areas, such as white-collar crime prosecution or judicial criticism of the department’s foot-dragging on reform of the immigration courts under its control, most observers predicted a new leader would need to set some department priorities given limited resources. “There is no doubt the focus on violent crime under [former attorney general Janet] Reno had to end when terrorism became the primary direction,” said Daniel Richman, criminal law professor at Columbia Law School. “Over time they have to think seriously about white-collar crime enforcement because the prosecutors are stretched thin with the demands to do gun cases and terror cases,” Richman said.

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