2007: The Year of Living Dangerously
In the legal world, this grim year ends as it began: With grave revelations about misconduct by executive branch officials. From the U.S. attorney scandal that sprouted in January to the CIA's illegal destruction of evidence disclosed this month, the year was dominated by stories highlighting the extent to which our government -- in our name if not entirely with our consent -- has deliberately and relentlessly undercut the rule of law and the separation of powers.
The damage done this year -- or at least made known to us this year -- will last long past the tenure of the Bush administration officials responsible for it. Indeed, many of the worst culprits already are gone from public life.
Don't let the door hit you on the way out Alberto Gonzales, Harriet Miers, Charles "Cully" Stimson, Monica Goodling, I. Lewis "Scooter" Libby, Karl Rove, Michael Battle, Bradley Schlozman, William Mercer, Kyle Sampson, Paul McNulty and Michael Elston.
What did these government officials (and others still at their posts) do in 2007? Or, more precisely, what did we discover in 2007 that they had done in years past? In short, they used reckless means (such as firing professional attorneys at the Justice Department and misleading federal judges) to justify dubious ends (including unfettered presidential power and draconian anti-terror rules).
Let's start at the beginning, with the U.S. attorney scandal. The White House fired eight competent and aggressive federal prosecutors for not being "loyal Bushies." This was important because the Justice Department --with its cadre of seasoned nonpartisan attorneys -- was one of the last remaining bulwarks against a "unified executive theory" (the idea that all executive branch power ought to reside with the president). And a Justice Department with fewer independent minds might better support, or at least tolerate, wider implementation of that theory (to the detriment of the other two branches and the rest of us).
If Attorney General Gonzales didn't trigger the U.S. attorney purge, he certainly facilitated it. And then, to help protect his boss at the White House, he sacrificed whatever was left of his own reputation, allowing himself to be ridiculed and laughed at by the Senate Judiciary Committee. The man in the post once held by legends Archibald Cox and Eliot Richardson became, quite literally, a joke. And the Justice Department's morale, integrity and reputation went down with him.
Gonzales was far from the only administration official to defy Congress. When the U.S. attorney scandal broke, the White House offered only to make Rove and Miers available to chat informally with legislative attorneys -- with no sworn testimony or even the ability for the questioners to take notes about their conversations with two people at the heart of the scandal. Sue us, the White House said to the Congress, we'll take our chances with executive privilege through a court fight that lasts for years. Just this month, the same feds told the courts not even to inquire about the CIA's destruction of those damning videotapes.
In court, meanwhile, legions of federal attorneys oversold their cases to legions of federal judges. Even before we learned that the CIA had destroyed interrogation videotapes (material to Zacarias Moussaoui's capital case), federal prosecutors in October had to apologize to Moussaoui's judge -- 18 months after the trial -- for allegedly not knowing about the existence of such evidence. At Guantanamo Bay, it took the surprise filing of a damning affidavit by a courageous military lawyer just to convince the Supreme Court to take another look at the rights to which the detainees are entitled.
Probably the best example of the administration officials' win-at-all costs strategy against so-called "enemies" came via the coercive work of Charles "Cully" Stimson, former deputy assistant secretary of defense for detainee affairs, who despicably tried to convince major corporate clients to fire the private attorneys and law firms that were providing pro bono work to the Guantanamo detainees. Never mind that the provision of legal assistance to those who need it most is one of the more noble callings of the legal profession. Never mind that the legal community rose up as one to defend those brave volunteers. Like the hockey player who leaves the ice after delivering a cheap shot, Stimson quickly left the arena. The damage already had been done.
If these stunts, misdirections and outright lies (and potential crimes) were self-contained, if they already had spawned their greatest destruction upon the justice system, it would be bad enough. But they weren't and they haven't. The consequences of this annus horribilis will continue long after the rest of the Bush administration is retired to the pasture of the private sector (or to the corridors of federal penitentiaries). When you plant a bad seed, expect a poisonous tree.
Federal judges, realizing with more clarity each day that things are rarely what they seem to be in terror law cases, will become even more skeptical of the claims of federal lawyers and intelligence officials when they stand before the court and declare that the judiciary must defer to the other branches in determining the legal contours of the war on terror. Bright young professional attorneys -- those who have the integrity to reach beyond their political leanings -- will think twice about joining a Justice Department still tainted by partisanship. Secret memos and rules and policies will be hard to undo. And, perhaps most important, public confidence in the way the branches of government work together toward a fair and impartial legal system may be irretrievably lost.
The best that can be said of 2007, therefore, is that it is over, and that never before have the executive branch's legal strategies and motives been more scrutinized by so many people at once. It has taken six years, and untold damage to the nation's legal infrastructure, but the chickens may finally be coming home to roost. Too late for many. Just in time for most.
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