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Stop the Demagoguery

by Tim Lynch

Timothy Lynch is director of the Cato Institute's Project on Criminal Justice.

This article appeared in the Legal Times on September 3, 2007. © 2007 ALM Properties Inc. All rights reserved. This article is reprinted with permission from Legal Times.

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As Alberto Gonzales takes his well-deserved leave, here are a few do's and don'ts for our next attorney general. First, some do's:

• Do keep federal law enforcement agents focused on potential terrorist cells within the United States. Raiding California medical marijuana clinics has always been a gross misallocation of resources.
• Do keep Vice President Dick Cheney and the whole "energy in the executive" coterie of lawyers within the Justice Department at arm's length. Keep reminding them that their responsibility is to defend the entire Constitution, not just Article II. Task them with reading the Watergate and Church Committee hearings, if necessary.
• Do recommend more use of the veto pen and less use of signing statements. The Bush administration's mishandling of the McCain-Feingold campaign finance legislation and the bill from Sen. John McCain (R-Ariz.) to ban cruel and inhumane treatment of prisoners should be textbook examples of how government lawyers can disserve their president.
• Do reverse the administration's startling legal assertion that the entire world, including every inch of U.S. territory, is a "battlefield" in the war against al-Qaida. Since there are no legal rights whatsoever on a battlefield, that stance threatens the rights of us all.
• Do resist the call for yet another special prosecutor. Instead, cooperate with congressional investigators and waive executive privilege for the time being. If Congress wants to interview Gonzales, don't resist a call for sworn testimony and a transcript.
• Do recommend greater use of the pardon. With more than 2 million people behind bars, there are scores of individuals who deserve clemency. Put Clarence Aaron, DeJarion Echols, and David McNab at the top of your list.

Now, some don'ts:

• Don't overrule a U.S. attorney who has declined to seek the death penalty in a particular case. If you are inclined to reverse, spend several hours, not minutes, considering the matter.
• Don't demagogue terrorism-related issues. When this year's Protect America Act comes up for renewal in six months, don't suggest that administration opponents are aiding and abetting al-Qaida. Raise the level of discourse.
• Don't deport the Guantánamo Bay prisoners who wish to remain there. Yes, some men would rather stay in Guantánamo than face deportation to a country where they may well be killed shortly after their arrival.
• Don't visit schools for photo ops. Start a trend.
• Don't go to a hospital to discuss a policy matter with any patient.
• Don't fire any U.S. attorneys. Yes, yes, they work for the president, and he can fire them for any reason or no reason at all. Just don't do it. No matter what.