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Anti-terrorism policies crafted by ex-court clerks

By A. James Memmott

October 4, 2007 at 12:45pm

While Supreme Court law clerks can now count on big signing bonuses after their year with the court, they can also count on good and powerful jobs in the government.

And as they rise to power in these jobs, they most likely find themselves working along side other former court law courts, fellow members of an elite club.

Connections count, and the Supreme Court connection counts a lot.

A look at the cast of characters in the ongoing controversy over the Bush presidency’s policies on terrorism and the interrogation of suspected terrorists bears this out.

Several of the key players in shaping these policies were Supreme Court clerks in the 1990s, the majority of them brought to the court by Justice Clarence Thomas.

“We all grew up together,” Viet D. Dinh, an assistant attorney general from 2001 to 2003 and the chief author of the U.S. Patriot Act, told the New York Times today. “You start with a small universe of Supreme Court clerks, and you narrow it down from there.”

Dinh clerked for Justice Sandra Day O’Connor during the 1994-95 term.

Some of the other former clerks who have influenced Bush policies in the post-9/11 world are:

Steven G. Bradbury, a Thomas clerk from 1992 to 1993, who is now the head of the Office of Legal Counsel in the U.S. Department of Justice. He is said by the Times to have made the case for harsher interrogation tactics. (Laura Ingraham, conservative talk show host, also clerked for Thomas during this term.)

John Yoo, a Thomas clerk from 1994 to 1995, worked in the Office of Legal Counsel from 2001 to 2003 and wrote controversial memos on interrogation and made the case for not granting enemy combatants the protection of the Geneva Convention.

Jack L. Goldsmith, a clerk for Justice Anthony Kennedy from 1990 to 1991, headed the Office of Legal Counsel for nine months (2003-04) and ruled that some of the previous policies on torture had gone too far.

Patrick Philbin, a clerk for Thomas from 1993 to 1994, served in the Justice Department from 2001 to 2005. While in the Office of Legal Counsel, he advised that terrorist detainees could be tried before military commissions. He is said to have lost favor with the administration when he sided against its position on domestic spying.

While all of these men have the Supreme Court in common, three of them have another link.

Before they clerked at the court, Dinh, Yoo and Philbin were law clerks for Laurence H. Silberman, now a senior judge on the United States Court of Appeals for the District of Columbia Circuit.

An out-spoken conservative who served on the Foreign Intelligence Surveillance Court, Silberman has seen at least 20 of his clerks go on to clerk at the Supreme Court.

He is also said to have urged Thomas to become a federal judge in the late 1980s and they served together on the Court of Appeals for the District of Columbia.

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