The Corner

The Attorney General …

… is one of the greatest men I have ever known.  Not just a great judge or a great attorney-general.  A great man.  A man who loves this country and inspires those around him to see and understand her greatness.  A man for whom loving America has always meant serving America, selflessly.

I’m relieved to say I’m told he’s feeling better in the hospital this morning — already agitating for his regular morning briefing.  I can assure you that he’d be embarrassed by all the fuss.  What he would care about is that you know the lengths the Justice Department and the administration have gone to protect our country and defeat our enemies, with abiding respect for the law.  That was the thrust of his eloquent speech last night — and it’s a speech that deserves to be remembered for its content more than anything else.  The Federalist Society has posted it, here.  An excerpt:

As the end of this Administration draws near, you would expect to hear broad praise for [its] success at keeping our Nation safe.  Instead, I am afraid what we hear is a chorus with a rather more dissonant refrain.  Instead of appreciation, or even a fair appraisal, of the Administration’s accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe.  We have seen this in the media, we have seen this in the Congress, and we have heard it from the legal academy as well. 

In some measure, those criticisms rest on a very dangerous form of amnesia that views the success of our counterterrorism efforts as something that undermines the justification for continuing them.  In an odd way, we have become victims of our own success.  In the eyes of these critics, if Al Qaeda has not struck our homeland for seven years, then perhaps it never posed much of a threat after all and we didn’t need these counterterrorism policies.

Other critics question the premise—almost universally accepted following the September 11th attacks —that the United States is engaged in a war against Al Qaeda and other groups.  Even more common is the casual assumption among many in media, political, and legal circles that the Administration’s counterterrorism policies have come at the expense of the rule of law.  I am quite familiar with these criticisms, having heard them myself during my tenure as Attorney General. 

Now it is hardly surprising that the questions of how we confront the terrorism threat should generate vigorous debate.  These questions are among the most complex and consequential that a democratic government can face.  There is, understandably, passionate debate about where the legal lines are drawn in this new and very difficult conflict and, as a matter of policy, how close to those legal lines we should go.

As the members of this Society know, however, answering legal questions often involves a close reading and a critical analysis of a text—the Constitution, statutes, judicial decisions, and the like.  Regrettably, this point is much too often lost in the public discourse on the subject.  Newspapers, commentators, and even prominent lawyers often discuss critical questions about national security policies with barely any acknowledgement that the answers may depend on the language of, say, the Constitution or a statute.  And critics of this Administration’s policies rarely draw distinctions between whether a course of action is permitted as a matter of law, and whether that course of action is prudent as a matter of policy.

For example, earlier this year, the head of a legal organization that prides itself on what it calls its “nonpartisan approach to the law” gave a speech condemning what he called “the oppressive, relentless, and lawless attack by our own government on the rule of law and our liberty.”  According to this person, we live now in a — “time of repression” where the “word ‘Patriot’ names a statute that stifles liberty,” and where we face “assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions.”  You can practically hear the rumble of tanks in the background.

It is interesting—and telling—that even in the published, written version of these remarks by a lawyer, the references and footnotes are not to statutory texts, the Constitution, treaties, or laws.  Instead, the author relied on such authorities as the New York Times, the Washington Post, and the New York Review of Books.  This style of criticism can be called many things—provocative perhaps, or evidence that the author could be regarded by some as well-read —but what it cannot be called is a reasoned legal critique.

Also completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the Administration lawyers who made these decisions.  Nor was there any discussion of the atmosphere in which these decisions were made.  I was in New York City when the two planes hit the Twin Towers, and I know what it was like to be in the city at that time.  But I cannot speak from any experience of my own to what it was like to be a lawyer in the Justice Department at that time.  There must have been almost unimaginable pressure, without the academic luxury of endless time for debate.  The lawyers called on to make critical legal judgments at that time – and in real time – certainly had no time to consult the New York Review of Books when looking for answers to these difficult and pressing questions.

If you listen only to the critics, you might assume, for example, that this Administration, by asserting that habeas corpus did not apply to alien enemy combatants, had tried to deprive the judiciary of a time-honored role in second-guessing our military commanders’ decisions concerning whom to detain on foreign battlefields.  Of course, before this armed conflict, federal judges have never asserted the authority to afford habeas corpus to alien enemy combatants captured and detained abroad. 

As even the majority in Boumediene acknowledged, the Supreme Court had “never held that noncitizens detained by our Government” outside the United States had “any rights under our Constitution.”  Indeed, following World War II, the Court had specifically rejected that habeas corpus would apply in that context.  The Administration’s position in Boumediene thus was at least arguably justified by text, history, and precedent.  A majority of the Supreme Court may have disagreed, but the Administration’s position hardly constitutes the attack on habeas corpus asserted, but not explained, by its critics like the author I quoted.

And when people denounce a purported assault on the “Geneva Conventions,” you might expect some level of specificity in the charges.  One cannot “assault” a treaty as an abstract concept; one can only violate the treaty by acting contrary to its words.  The Geneva Conventions contain 319 articles, of which 315 are plainly addressed to armed conflicts among the nations that signed the Conventions.  It is hardly surprising that the United States concluded that those provisions would not apply to the armed conflict against Al Qaeda, an international terrorist group and not, the last time I checked, a signatory to the Conventions.

One common article appearing in each of the four conventions, Article 3, provides rules that govern “conflicts not of an international character,” such as civil wars.  The President concluded early on that the global war against Al Qaeda had a decidedly “international character.”  In Hamdan v. Rumsfeld, a majority of the Supreme Court disagreed.  This narrow legal dispute—again turning on an Administration interpretation that was both reasonable and, indeed consistent with text, history and precedent—hardly warrants the sweeping, dismissive, and entirely conclusory criticisms so frequently heard.

I focus on these types of criticisms not because they are so extraordinary, but because they are unfortunately so typical of people who substitute their policy views for any serious legal analysis and who would turn a good-faith legal disagreement into a battle over the purported existence or non-existence of the rule of law.  The irony, of course, is that the law requires a serious analysis of text, precedent, and history, and it does not serve the rule of law to substitute a smug sense of outrage for that kind of analysis. 

In fact, this Administration has displayed a strong commitment to the rule of law, with all that entails and I suspect, and I admit it is a suspicion tinged with hope, that the next Administration will maintain far more of this Administration’s legal architecture than the intemperate rhetoric in some quarters would seem to suggest. 

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