How Appealing Extra

How Appealing Extra

Monday, February 26, 2007

© 2007 The Daily Journal Corporation.
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February 26, 2007

Joseph Onek Brings Insider's Resume to Aide Pelosi in Possible 'Legal Arms Race'

By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - When new House Speaker Nancy Pelosi, D-Calif., hired veteran Washington lawyer Joseph Onek last month to be her senior counsel, legal experts saw it as a warning shot across the bow of the Bush administration.

Onek, a veteran of the Carter and Clinton administrations, is no political lackey. He's a respected civil-liberties advocate and an outspoken critic of what he believes is the current administration's abuse of executive power and a failure by Congress under Republican control to rein in the White House.

Onek, 65, is Pelosi's point man on a host of hotly contested legal issues, from habeas-corpus rights for enemy detainees to the administration's covert surveillance operation.

"I am counting on his vast experience and wise counsel as we deal with a range of legal issues involving the House of Representatives," Pelosi said.

Even some conservatives concede that Onek is highly qualified for his role.

"He is a fine lawyer ... and has an intimate understanding of the executive-legislative relationship," said Pepperdine University School of Law professor Douglas W. Kmiec, who served in the Justice Department under Presidents Reagan and George H.W. Bush.

Kmiec and other legal scholars see Onek as the perfect counterpart to President Bush's new White House counsel, Fred F. Fielding, whom many expect to be open to working with a Democrat-controlled Congress.

More-outspoken conservatives are less complimentary about the appointment, saying they fear Onek's views on civil liberties could damage the president's war on terrorism. The Rev. Louis Sheldon of the Traditional Values Coalition said recently that Onek's background "should be of deep concern to all Americans."

Onek jumped at the opportunity to work for Pelosi largely because of his frustration at the White House's broad interpretation of executive power.

During a recent interview at Pelosi's office deep in the bowels of the U.S. Capitol, Onek made it clear that his role is to help Congress put the brakes on the White House.

"We have an incompetent and overreaching executive branch," he said bluntly. "I think these are a crucial two years because the last six years have been so terrible."

He finds equal fault with the Bush administration and the Republican-led Congress, which he claims failed to put major checks on the president's powers, particularly regarding national-security issues.

Onek said Bush might have benefited from a more-vigilant Congress taking a keen interest in the government's response to Hurricane Katrina and nation-building efforts in Iraq.

"I'm not sure that the executive branch was well-served by having a do-nothing Congress," he said.

The White House did not respond to a request for comment about Onek's appointment.

Onek voiced concern that the Bush administration orchestrated a nationwide spate of firings of U.S. attorneys, including two in California. Sen. Dianne Feinstein, D-Calif., led the chorus of disapproval against the purge - which included San Diego-based Carol Lam and San Francisco-based Kevin Ryan - based on suspicion that Bush wants to handpick successors without going through the traditional Senate confirmation process.

A provision added to the Patriot Act last year would have allowed the administration to adopt such a plan, but the White House has insisted there is no plan to do an end run around the Senate.

Although the issue is of more interest to senators than to members of the House, who have no say in confirmations, Onek is clear that it concerns him.

"There's a reason why we have Senate confirmation," he said. "I don't think that should be lightly given up."

But Kmiec warns that Congress should not attempt to overreach, as Pelosi and others have accused Bush of doing.

"It's one thing to check executive excess; it is quite another to disregard the functions that are assigned by the Constitution to the commander in chief," he said.

Insider's Resume
Onek, a Yale Law School alumnus, has the ultimate Washington insider's resume, having worked in the White House and Congress and as a Supreme Court law clerk.

As a private attorney between government jobs, he was known for his litigation skills. He even has argued cases before the Supreme Court.

"He is a guy with enormous experience in Washington," said Michael J. Gerhardt, a law professor at the University of North Carolina, Chapel Hill. "He may have more familiarity than most with all three branches of government."

Onek clerked for Judge David L. Bazelon of the U.S. Court of Appeals for the D.C. Circuit, then for Supreme Court Justice William J. Brennan.

Onek was deputy counsel to President Carter and worked in the Justice Department and the State Department during the Clinton administration. He became a critic of the current administration while working for the liberal Open Society Institute and bipartisan legal think tank the Constitution Project, where Onek was senior counsel.

His ties to the Open Society Institute, founded and bankrolled by billionaire George Soros, riles conservatives like Sheldon, who claim that Soros' influence on the Democratic Party is unhealthy.

For most Congress watchers, though, Onek's appointment was not surprising. They agree that it is imperative for Pelosi to have strong legal representation when facing down the Bush administration.

Arthur D. Hellman, a law professor at the University of Pittsburgh who testifies before Congress frequently, said it is noteworthy that Pelosi picked someone with "independent standing" within the legal and political communities.

"This means two things: He'll be in the loop, and his advice will be given substantial weight," Hellman added.

Challenging Authority
At the Constitution Project, Onek was director of its Liberty and Security Initiative and was active in the post-Sept. 11 debate over national-security issues including the treatment of enemy combatants at the U.S. naval base at Guantanamo Bay, Cuba, and the administration's controversial warrantless-wiretapping program, which the White House recently pledged to end.

Kate Martin, director of the Center for National Security Studies in Washington, D.C., said Onek was "very much involved as a leading voice" in questioning the Bush administration's tactics after the 2001 terrorist attacks. She worked alongside Onek and describes him as "a wonderful lawyer."

Onek remains critical of the Military Commissions Act, which Congress passed last year at the request of the White House. He describes Congress as having been "too deferential" to the president at that time.

The commissions act stripped detainees of the right to file habeas-corpus claims in federal court, a decision that has troubled lawyers throughout the political spectrum, including former Senate Judiciary Committee chairman Sen. Arlen Specter, R-Pa.

The D.C. Circuit upheld that statute last week when it ruled on a series of claims from detainees. Onek said the ruling did not surprise him because the law is not clear.

"It's something of an open question" as to which rights noncitizens have, he said. "Whether that is still good law, or should be good law, is unclear."

Onek demurred over whether Congress should restore habeas-corpus rights, as Specter and Sen. Patrick J. Leahy, D-Vt., the new chairman of the judiciary committee, have proposed, but said he expects to be involved in discussions if the House takes up the issue.

On the surveillance front, Onek is reluctant to embrace the Bush administration's suspension of the warrantless-wiretapping program as a victory. The Justice Department made the decision after obtaining an order from a specially assigned court that deals with foreign-intelligence surveillance, officials said last month when announcing a halt to the program.

That court's order is not public, though, so Onek and others are not sure what to think.

"The problem here is that, until we know exactly what the court ruled, it's very difficult to know if it's a great civil-liberties victory," he said.

Now could be a time for Congress to act by revising the Foreign Intelligence Surveillance Act of 1978, which set up the current process, Onek suggested.

"Congress in '78 passed the law that said, 'This is the exclusive means for getting foreign intelligence,'" he said. "Congress needs to reassert that."

'Legal Arms Race'
As he prepares to tackle such controversial matters, Onek is confident that Congress should work better with the White House now that Fielding is Bush's top lawyer.

"He has a reputation for being capable and reasonable," Onek said, adding that, as a member of the bipartisan Sept. 11 commission, Fielding presumably "understands the need for oversight."

The two make a good match, according to Kmiec, because "Fielding and Onek are simply the modern names for what James Madison referred to as the balance of power preserved by ambition checking ambition."

Onek conceded that most assume legal battles to occur between the executive and legislative branches during the next couple of years, which is one reason people such as himself and Fielding have returned to government.

"I'm not sure there's a legal arms race going on," he joked. "But it's fair to say everyone wants to be prepared."

Friday, February 09, 2007

© 2007 The Daily Journal Corporation.
All rights reserved.

Posted with permission. This file cannot be downloaded from this page. The Daily Journal's definition of reprint and posting permission does not include the downloading, copying by third parties or any other type of transmission of any posted articles.

February 09, 2007


By Lawrence Hurley
Daily Journal Staff Writer

WASHINGTON - Idaho Judge N. Randy Smith is a step closer to taking a place on the 9th U.S. Circuit Court of Appeals after the Senate Judiciary Committee approved his nomination Thursday.

But mystery remains over whether a second vacancy on the court will go to a Californian, as Democratic Sen. Dianne Feinstein hopes.

Unlike last year, when Feinstein, D-Calif., blocked a committee vote, Smith likely will be confirmed without any opposition by the full Senate.

Smith, 57, a Brigham Young University Law School graduate, has been a state-court judge in Idaho for 12 years.

He is well-connected within the Republican Party, having served as chair of the GOP's state party in Idaho when he was a corporate lawyer.

Previously, Feinstein opposed Smith not because of his qualifications but because he was nominated to fill a seat vacated by Judge Stephen Trott, who is on senior status.

Although Reagan nominee Trott is based in Idaho, Feinstein and other Democrats maintained that the former U.S. attorney for Los Angeles was California-based at the time of his nomination in 1988.

Feinstein finally prevailed in January, when the White House decided to renominate Smith for another judgeship that became available when another Idahoan, controversial former Bush administration official William G. Myers III, withdrew his name from consideration.

But the White House has not nominated someone to fill the remaining judgeship and has not stated whether the nominee will be from California.

The White House had not responded to requests seeking comment by press time.

Feinstein herself said recently that she has not had any discussions with the administration about the nomination.

Of the 26 active judges on the 9th Circuit, 10 are Republicans, including six nominated by President Bush in the last six years.

Meanwhile, Sen. John Ensign, R-Nev., re-introduced a bill Thursday proposing that the 9th Circuit be split into two circuits.

It's an issue that's been before Congress numerous times in recent years, but experts say it is making little progress now that the Democrats are in charge.

"There's no chance a bill could make it through a Congress controlled by Democrats," said Arthur Hellman, a law professor at the University of Pittsburgh.