The Obfuscation Report

Attorney General Alberto Gonzales says federal judges are unqualified to make rulings affecting national security policy, ramping up his criticism of how they handle terrorism cases.

In remarks prepared for delivery Wednesday, Gonzales says judges generally should defer to the will of the president and Congress when deciding national security cases. He also raps jurists who "apply an activist philosophy that stretches the law to suit policy preferences."

If you're like me, you threw up a little in your mouth when you read that Gonzales criticizes those who "apply an activist philosophy that stretches the law to suit policy preferences." And you did so because you're already too well aware that this "administration" has, if it's done nothing else (and there's an argument to be made that it hasn't), has become the nation's leading producer of such stretched law. Imaginary "inherent powers" justify everything under the sun. The "state secrets" doctrine prevents anyone with questions from making even the most basic inquiries into policy. Signing statements claim the right to nullify legislation outright. Not to mention Pentagon-sponsored intimidation of attorneys who represent Guantanamo detainees.

Gonzales goes on in his prepared remarks to outline the qualities he claims the "administration" looks for in a judicial nominee:

We want to determine whether he understands the inherent limits that make an unelected judiciary inferior to Congress or the president in making policy judgments. ...That, for example, a judge will never be in the best position to know what is in the national security interests of our country.

Just for the record, though, let's also note that Gonzales doesn't think anybody is in as good a position to know what is in the national security interests of our country, including his own Justice Department. Which explains why he didn't even blink when he told Arlen Specter's Senate Judiciary Committee last July that the president personally killed the DoJ's own internal investigation by the Office of Professional Responsibility into the propriety of the process by which it advised him that the NSA's domestic spying program was both legally justified and being legally administered. As for Congress being qualified, you can forget that. Remember, the "administration" blames Congress for leaking the NSA story in the first place.

So there you have it: the Bush "administration" believes, unsurprisingly, that they -- meaning the Doomsday Bunker crowd in the White House -- are the only ones "qualified" to make decisions that effect the national security. Congress is full of leakers, and federal judges are morons.

But that's just one front on which the "administration" attacks the very notion of justice, not to mention the Department which "administers" it. The strange case of the disappearing U.S. Attorneys has recently come to light, and it's just one of many ways the DoJ has been pushing the limits of the "administration's" discretionary powers in non-national security arenas.

The one that still stands out most prominently for me is their exploitation of the traditional deference the courts give the DoJ in their reviews of Congressional redistricting plans. Most of you will recall the travesty that was the Tom DeLay-financed redistricting in Texas (which, by the way, turned into a total disaster for that state). But did you realize the extent of the DoJ's exploitation of judges' willingness -- really, a requirement -- to give DoJ exactly the kind of deference Gonzales now demands on national security?

The DoJ's career (i.e., non-political) voting rights staff, in a memo buried by the Justice Department brass, unanimously recommended that the Texas plan be rejected as racially discriminatory. But the Bush DoJ approved the plan, and:

the Texas legislature proceeded with the new map anyway because it would maximize the number of Republican federal lawmakers in the state, the memo said. The redistricting was approved in 2003, and Texas Republicans gained five seats in the U.S. House in the 2004 elections, solidifying GOP control of Congress.

How was that even possible? It was possible because federal courts already give the DoJ precisely the kind of deference on voting rights matters that Gonzales now demands on national security matters. That is, courts operate under the assumption that the DoJ is actually doing its job profesionally and responsibly. (Why? Because it has an Office of Professional Responsibility to make sure!) But the assumption is based on much more than that. It's based on reasoning that once made sense, but which has been exploited to the breaking point by the Bush "administration." The guidelines of judicial deference were written when it was still safe to assume that governmental actors did the boneheaded things they did out of a sincere desire to govern, as opposed to a desire to do whatever it is the "administration's" political operatives think would make a nice trophy.

Just as with Plamegate and all "stovepiping" progeny, where the claim will be that it's within the presidential prerogative to redirect (and if necessary, reassemble from spare parts or whole cloth) the authorized and legitimate intelligence services of the United States. And just as with DeLay's money laundering, with the K Street Project, with Jack Abramoff's staggering corruption, and with who knows what else is yet to be unearthed, where the claim is that to single such activity out is to "criminalize politics," so with the Texas redistricting do we see that it is the intention of the "administration" to actively employ the standards of deference they now demand for the legal review of national security matters as cover for their wrongdoing, because they know that no courts (save the "activist" ones!) have the tools to reach them without throwing out time-honored and otherwise quite reasonable restraints against the (real) government's power to levy punishment and mete out justice.

Don't be fooled. (I know you won't be.) Gonzales' griping today is just so much more of the same power-grabbing the "administration" has been engaging in all along.