Over the past few days, top lawyers from conservative and libertarian circles have risen to the defense of liberal lawyers at the Justice Department, who are wrongly being attacked for having represented terrorist detainees during the Bush years. While the frustration driving those attacks is understandable, we can’t let partisan politics get in the way of the rule of law.
This week leading conservatives and libertarians have responded to attacks by Liz Cheney and Keep America Safe against a number of lawyers in the Obama-Holder Justice Department. These lawyers and scholars correctly explain that the rule of law requires every party to make every argument before a court in order for judges to reach the best decision. Assaulting lawyers for the clients they represent is assaulting the rule of law that lies at the very heart of the U.S. Constitution and the American Republic.
The list of people pushing back on these wrongheaded attacks includes a “Who’s Who” of conservative legal thought: Attorney General Michael Mukasey (who called Liz Cheney’s arguments “shoddy and dangerous”), Deputy Attorney General Larry Thompson, Assistant Attorney General Peter Keisler, Rep. David McIntosh, and Judge Kenneth Starr, among others. No one has ever accused any of those gentlemen of being soft on terror, and for good reason. They’re all warriors when it comes to national security.
These attacks are being driven by frustration, but they still cross the line. Congressman McIntosh makes the point that we don’t fault someone for the legal work that they do, but it’s perfectly okay to challenge someone to explain their policy decisions. We need to stay the right side of that line.
Former Solicitor General Ted Olson, while also opposing these attacks, noted that many from the political left who are now protesting against these accusations were completely silent when Bush-era lawyers, such as Judge Jay Bybee, along with Steve Bradbury and John Yoo, were even more harshly condemned for their work prosecuting the War on Terror, including the wingnuts calling for those conservatives to be impeached, disbarred, and even imprisoned.
Olson’s point is valid. While the news today is about high-ranking people from the right like those mentioned above, there are also many from the left defending these Obama-Holder appointees. The fact that the administration’s defenders of the Justice Department from the left were the ones making attacks a couple years ago reveals these sanctimonious hypocrites for the cheap partisan hacks that they are.
Even Professor John Yoo, perhaps the foremost advocate of executive power and prosecuting the War on Terror from the previous administration as an assistant attorney general, disagrees with these attacks. (When you’re being tougher on a national security issue than John Yoo, that means you’re wrong.) He makes the extremely important point that the Constitution vests national security policy power in the president. The American people chose to vest that power in Barack Obama. If President Obama is weaker and softer on protecting this nation than previous presidents, it is nonetheless his decision to make.
In other words, elections have consequences. The American people decided that they wanted Barack Obama to be the one responsible for keeping our families safe. As part of that, he has the right to appoint subordinates who share his philosophy. Those of us who voted against President Obama—and who see daily reinforcement that we made the right decision by voting against him—lost the election. He’s our president, and will be for another three years.
To end on a related topic, for the reasons I explained in a previous column, the attacks that Liz Cheney and Keep America Safe are leveling against Justice Department lawyers are nothing compared to the dangerousness of the president of the United States attacking the U.S. Supreme Court, as Barack Obama did during the State of the Union.
Those on the right were as quick to criticize the president for that attack as they have been to criticize Keep America Safe.
Now, let’s see people on the left follow suit, and criticize President Obama for assaulting the Supreme Court, which undermines the rule of law far worse than anything that Liz Cheney could ever say.
Ken Klukowski is a fellow and senior legal analyst with the American Civil Rights Union. He is a frequent contributor to the Fox Forum.
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Ken Klukowski is an attorney who works on religious liberty for First Liberty Institute and on constitutional interpretation for the American Civil Rights Union.