What is the role of the Justice Department?

This message is not a typical rant, but rather a sort of plea. I would ask that those with more historical knowledge and/or professional background in political matters please respond to the following question: Has the Justice Department always been this cynical? To explain myself:

 

I’m sure that everyone has heard of the many situations in which the current administration has run afoul of the judiciary and the legislature regarding the separation of powers. A federal judge ruled today that the administration’s program of having the N.S.A. conduct warrantless wiretaps is unconstitutional. Specifically, U.S. District Judge Anna Diggs Taylor stated that the program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA [Foreign Intelligence Surveillance Act] and Title III.” This followed hot on the heels of the A.B.A.’s denunciation of the program. Justice will appeal the ruling. This is no surprise. However, I find part of their response telling: CNN cites them justifying their appeal by saying the program is “a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack.” They go on: “In the ongoing conflict with al Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people… The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties” (http://www.cnn.com/2006/POLITICS/08/17/domesticspying.lawsuit/index.html).

 

That may be a fair claim, but it is a classic example of a logical non sequitur. The key is the last clause: the lawfulness of the program and its encroachment upon civil liberties literally appear to be an afterthought.

 

Regardless of the rest of Justice’s argument, this piece of specious tripe is dangerously inappropriate. The judge’s ruling has nothing to do with whether the program is helpful at preventing a terrorist attack. Fingerprinting everyone who enters the country would probably be helpful. Implanting GPS sensors in everyone would probably be extremely helpful. Completely shutting down the borders, building 100 foot fences, making routine searches and seizures, condoning torture, all these measures might be awfully helpful at preventing another attack. The problem is that the question of a program’s preventive potential is completely beside the point. The issue is the whether the Executive is adhering to the Constitution. At best, Justice could try and explain to Congress how important it is to amend the Constitution (specifically, to redefine and/or revoke the I, III, IV, V, IX, and XIV Amendments) to allow such procedures in defense of the nation. At worst, this bit of political rhetoric serves the administration: for those few Republicans people concerned enough about wiretapping to keep up with the latest news on the issue, this sentence simultaneously paints the federal judge as an “activist” while it maintains the fear- and war-mongering tone essential to the survival of this administration’s policies. Regardless, the statement has no place in an argument about the constitutionality of a government program. It has the same legal clout as the claim by some states after Brown v. Board of Education that desegregation, regardless of its constitutional basis, would be dangerous to implement and therefore the federal government cannot force states to implement it.

 

One final note: “instead of responding to arguments attacking the legality of the NSA’s eavesdropping program, the government filed for dismissal of the case, citing the ‘U.S. military and state secrets privilege’ and arguing the government would not be able to defend the domestic spying program without disclosing classified information” (ibid.). Delightful. How respond to people who claim that your actions in defense of the Constitution are undermining the Constitution itself? Tell them that you can’t, lest you undermine your defense of the Constitution.

 

But I digress. My curiosity is the role of Justice in all these shenanigans. In this, as in many of the recent squabbles between the Executive and the other powers in the last 6 years, Justice has appeared as the cheerleader for the administration. This has been the case repeatedly: regarding the suspension of habeas corpus, whether Jose Padilla’s solitary confinement for years or the Gitmo prisoners; regarding the use of torture by intelligence personnel; regarding “extreme rendition” to foreign countries with lax or non-existent provisions on torture; regarding surveillance of bank records; regarding military tribunals; regarding the incarceration of a number of children under the age of 15 at Gitmo claimed to be “enemy combatants”; regarding the name “enemy combatant” generally, as a bald attempt to avoid the Geneva Conventions… In all these and many more actions, Justice has spent my tax dollars to defend the administration against all-comers.

 

Is this their role? Is it the charter of the Justice Department to act as legal counsel for the administration when the latter’s actions come under judicial review? I honestly don’t know. However, I do know that every office of the Executive has legions of legal counsels to examine acts before implementation and defend them after such. Indeed, the current head of Justice was one of Mr Bush’s top legal advisors prior to his promotion, as well as Mr Cheney’s current Chief of Staff Addington. I also know that, according to an old Washington Post article (“Civil Rights Focus Shift Roils Staff At Justice,” November 13^th, 2005), the Justice Department’s Civil Rights Division lost almost 20 percent of its lawyers in 2005, “in part because of a buyout program that some lawyers believe was aimed at pushing out those who did not share the administration’s conservative views on civil rights laws.” The article goes on to state that “prosecutions for the kinds of racial and gender discrimination crimes traditionally handled by the division have declined 40 percent over the past five years, according to department statistics.” Although the article is dated, it at least implies that Justice has some other purpose aside from pushing the administration’s agenda at all costs. That is, it implies that the Justice Department is intended to pursue some other issues, that presumably the primary purpose of the Attorney General is not to sit before Congressional Committees either repeating the administration’s position or stating that he cannot comment on issues of national security.

 

In short, is the Justice Department supposed to be a cabinet office dedicated to responding to lawsuits and court orders filed against the president? If so, why do tax dollars pay for White House legal counsels? If not, why is the former doing the latter’s job? In the meantime, who is doing Justice’s job? According to the Post, no one.