The departure of Assistant Attorney General David Kris from the Obama administration leaves another high-level Senate confirmation position open in the administration. Kris, as head of the National Security Division, was also one of the few genuinely high-profile members of the Justice Department who had been a prominent Bush critic on matters of civil liberties. As a lawyer in the Justice Department during the Bush era, Kris had offered harsh criticism of the administration's belief that the 2001 Authorization to Use Military Force had offered the president the authority to conduct warrantless domestic wiretapping.
Like Deputy Solicitor Neal Katyal, who litigated the Hamdan v. Rumsfeld case, Kris had gone from being a prominent opponent of Bush-era national-security policy to being responsible for handling the Obama administration's largely contiguous approach to national security, being obligated to defend in his professional capacity the administration's reauthorization of the PATRIOT Act and its revival of the military commissions. He was however, willing to remind Republican Senators that people accused of terrorist activity didn't automatically forfeit all due-process rights, and that including "material support" among the chargeable offenses in military commissions would be a bad idea. They didn't listen.
Kris was surely one of the more civil-libertarian-friendly members of the Justice Department. That may not seem to matter all that much given how the administration has conducted itself on matters of civil liberties, but it does -- one need only remember then-Attorney General John Ashcroft being accosted in his hospital bed by then-White House Counsel Alberto Gonzales and Chief of Staff Andrew Card demanding Ashcroft reauthorize the warrantless wiretapping program to know that who staffs the leadership positions in these agencies matters, particularly when you're talking about the leadership of the NSD.
With a more Republican Senate, it's hard to see the administration nominating another prominent Bush critic -- especially after what happened to Dawn Johnsen, the nominee to head the Office of Legal Counsel, who had been blocked by Republicans because of her strong opposition to torture.
