Stop the Demagoguery

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.

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

  • Do keep federal law enforcement agents focused onpotential terrorist cells within the United States. RaidingCalifornia medical marijuana clinics has always been agross misallocation of resources.
  • Do keep Vice President Dick Cheney and the whole"energy in the executive" coterie of lawyers within theJustice Department at arm's length. Keep reminding themthat their responsibility is to defend the entire Constitution,not just Article II. Task them with reading the Watergate andChurch Committee hearings, if necessary.
  • Do recommend more use of the veto pen and less use ofsigning statements. The Bush administration's mishandlingof the McCain-Feingold campaign finance legislation and thebill from Sen. John McCain (R-Ariz.) to ban cruel and inhumanetreatment of prisoners should be textbook examples ofhow government lawyers can disserve their president.
  • Do reverse the administration's startling legal assertionthat the entire world, including every inch of U.S. territory,is a "battlefield" in the war against al-Qaida. Since thereare no legal rights whatsoever on a battlefield, that stancethreatens the rights of us all.
  • Do resist the call for yet another special prosecutor.Instead, cooperate with congressional investigators andwaive executive privilege for the time being. If Congresswants to interview Gonzales, don't resist a call for sworntestimony and a transcript.
  • Do recommend greater use of the pardon. With morethan 2 million people behind bars, there are scores ofindividuals 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 seekthe death penalty in a particular case. If you are inclined toreverse, spend several hours, not minutes, considering thematter.
  • Don't demagogue terrorism-related issues. When thisyear's Protect America Act comes up for renewal in sixmonths, don't suggest that administration opponents areaiding and abetting al-Qaida. Raise the level of discourse.
  • Don't deport the Guantánamo Bay prisoners who wishto remain there. Yes, some men would rather stay in Guantánamothan face deportation to a country where they maywell 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 withany patient.
  • Don't fire any U.S. attorneys. Yes, yes, they work forthe president, and he can fire them for any reason or no reasonat all. Just don't do it. No matter what.