Video: Gitmo poses big challenge for Obama

By Tom Curry National affairs writer
updated 12/4/2008 11:38:05 AM ET 2008-12-04T16:38:05

WASHINGTON — We all know who the new secretary of state will be in president-elect Barack Obama’s administration.

But we don’t yet know most of the second-tier appointees — people who may appear to have obscure jobs but who could end up being immensely powerful.

In President Franklin Roosevelt’s New Deal, an FDR aide said the most effective appointees were the little-known bureaucratic wizards who had “a passion for anonymity.”

These appointees won’t be anonymous, but they won’t be famous either, at least not outside of the Beltway.

So what kind of jobs fall into this obscure but powerful category?

What's in a title?
One could be the assistant administrator for air and radiation in the Environmental Protection Agency.

Some experts believe next year Congress could pass a law to regulate greenhouse gas emissions in an attempt to curb global warming. Steel mills, electric utilities, and other companies which emit greenhouse gases will likely be forced to purchase or trade government-issued emissions permits if they want to continue doing business.

Kyle Danish, an attorney at the Van Ness Feldman law firm in Washington, specializes in corporate climate strategy and emissions trading. He says this assistant administrator at the EPA would have a decisive role in managing a “cap and trade” system of regulating greenhouse gas emissions.

Other contenders in the obscure but powerful job category could be the assistant secretary of the Treasury for tax policy, or the chief counsel of the Internal Revenue Service.

Just as every American is affected by the price of energy, everyone has a big stake in tax policy. With current income tax rates set to expire at the end of 2010, an intense political battle lies ahead over who should pay higher taxes.

Ken Kies, a lobbyist at the Federal Policy Group and the former chief of staff for the congressional Joint Committee on Taxation, said these second-tier positions will be influential, with the IRS chief counsel playing "a key role in all tax regulatory development." The man who now has that job, Don Korb, has announced he is leaving the post.

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Obama's new Cabinet?

Designing legal policy for detainees
Obama will face perilous decisions on the detainees now held the Guantanamo Naval Base. With respect to detainees, the head of Office of Legal Counsel (OLC) at the Justice Department will be the most important position.

Harvard law professor Jack Goldsmith, who had the OLC job for a bit less than a year in the Bush administration, explained in his book "The Terror Presidency" that "though little known outside the government, OLC holds an exalted status within it as the chief advisor to the President and the Attorney General about the legality of presidential actions. This small office of twenty-two lawyers determines whether the government’s most important and sensitive plans are lawful, and thus whether they can be implemented."

Also exerting influence on detainee decisions will be two officials at the Defense Department: the general counsel and the deputy assistant secretary for detainee affairs.

Defense Secretary Robert Gates, who will stay on under the new president, said Tuesday that "we would require legislation so that if somebody is released from Guantanamo they cannot seek asylum in the United States." It will be up to Obama's appointees to draft such legislation.

As for the people Obama will choose to serve under him in the Defense Department, Gates told reporters, “the transition will provide names and candidates to me for positions, particularly for the most senior positions. I will interview them, and then I'll make a recommendation to the president, and the president-elect or president will make the final decisions.”

Obama will be getting advice directly from retired Marine Gen. James Jones, his pick to be national security advisor.

According to a national security expert who has held policy-making jobs in the Defense Department and State Department and spoke on condition of anonymity, a person to watch will be the number two for Jones, the deputy national security advisor.

This person “generally manages the National Security Council staff and handles the issues which are not in the headlines but often turn out to be crucial,” said the source.

Advising Clinton at the State Department
According to this expert, within the State Department two second-tier players may wield great influence: counselor to the secretary of state and director of the policy planning staff.

These two officials are “who the secretary of state looks to to get a perspective different from the regional bureaus” within the State Department, such as the Bureau of East Asian and Pacific Affairs.

This expert said a highly significant spot at the Pentagon will be the job of undersecretary of defense for policy. This is the job that was held in the Bush administration from 2001 to 2005 by Douglas Feith, a man who wielded great power on the run-up to the Iraq War and who to a large degree has become a bête noir for the war’s critics.

Why judicial selection is vitally important
Perhaps most important of all is the judiciary, which any new president can stock with judges of his ideological persuasion.

According to the Federal Judicial Center, 312 judges appointed by President George W. Bush are now serving on the federal bench, compared to 346 judges now serving who were appointed by his predecessor, Bill Clinton.

“The thing that is so critically important about judicial selection is that once confirmed to a seat on the bench it’s a lifetime appointment. Judges are the only officials we don’t get to un-elect on Election Day,” said Nan Aron, head of the liberal advocacy group Alliance for Justice, which mobilized opposition to many of Bush’s judicial nominees.

“Therefore those in charge of judicial selection are making some of the most important decisions of any government official,” she said.

The pivotal players on judicial nominees will be Greg Craig, who will be White House counsel for Obama, and whomever Craig picks as his aide tasked with finding and vetting judicial nominees.

Craig, now a lawyer at Williams & Connolly firm in Washington, served Clinton as chief of the team of layers assembled to defend against the House impeachment in 1998 and 1999.

In the Bush Justice Department, the assistant attorney general for legal policy, Rachel Brand, now an attorney at the Wilmer Hale law firm in Washington, played a key role in vetting judicial nominees. You may not have known her name, but Brand was prominently seated behind Supreme Court nominee Samuel Alito during his Senate confirmation hearings.

It’s not yet clear whether Obama and the new attorney general, Eric Holder, will assign the assistant attorney general for legal policy to be a point person on judicial nominees.

There is likely be a vacancy or two on the Supreme Court in the next four years, but most appeals never reach the Supreme Court. A lot of them, especially the ones involving federal agencies, are heard by the U.S. Court of Appeals for the District of Columbia Circuit.

There are two vacancies on that court.

Obama's new Cabinet?In 2005, Aron and other Bush foes fought a fierce battle to try to keep his nominee, Janice Rogers Brown, off this Court due to her staunchly conservative views. But after an accord on ending Senate filibusters of judicial nominees, Brown was confirmed.

“The D.C. Circuit has been viewed for decades as the crown jewel in the system because it hears cases involving all the regulatory agencies, labor, civil rights, consumer and environmental protection,” said Aron. “It has been viewed as probably the most important circuit court in the country because of the kinds of cases it hears.”

Obama’s nominees to those two vacancies will be very telling indicators of his judicial ideology.

And while powerful, for most Americans these nominees are likely to remain obscure.

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