Sunday, April 8, 2007

The Justice Department Investigations Must Not Be Portrayed As Us Versus Them

There has been much written and discussed of late on the roiling scandals permeating the US Department of Justice. Much of it, and rightfully so, is being driven by the Democratic left. Our own Corpus Juris has been both eloquent and dogged on these issues, and deserves our commendation and thanks. Although I have seen absolutely no evidence of this from CJ, or any other contributor here, there are many of our brothers and sisters out there among the political activists and blogosphere that are, unfortunately, viewing this set of issues as but another political battle to be played for maximum advantage against the Republicans. Such a view cannot, and must not, be our tact.

The cracking of the Justice Department scandals must be a goal of justice and the rule of law, not a political goal. Quite frankly, adherence to steadfast political goals, albeit it on the other side, is what got us to this point in the first place. The actions of the investigating Congressional committees should not be to advance political goals, they should be to advance the principle of justice irrespective of whether the benefit inures to the Democratic or Republican side. To act otherwise puts the result above the process; the foundation of American law, and indeed American democracy itself, is the primacy of a fair and impartial process not the guarantee of any particular result or goal.

There has been a long and slow degradation of the understanding of this fundamental premise by both the American public and their elected leaders. When either side decides that "political goals" are primary, that inherently places results above the process. I have practiced law in the governmental misconduct and criminal areas for twenty years, and the phenomenon I describe is quite evident in the halls of justice. A lot of the circumstances and problems we are focused on today are the festering mature result of the primordial decisions of one party, the Republicans, to serve "political goals" by declaring themselves the "law and order party" and spreading fear of isolated and ultimately inconsequential, yet publically hyped and discussed, results in criminal cases. If a particular criminal defendant went free because the police or prosecution had substantially violated fundamental Constitutional protections, they screamed and bellowed "Hide the women and children, those liberals have freed this heinous criminal on a technicality to roam your streets and rob, rape and murder again".

So it began with characterizing hideous and substantive Fourth Amendment violations of fundamental search and seizure law as "mere technicalities". Soon judges and prosecutors, usually being elected officials themselves, started shading their duties and principles under the law to find creative ways around Constitutional protections in order to avoid results that would be unpopular. Then the officials ran again for election proudly proclaiming how they had protected the "law and order for the citizens" by "clamping down on criminals" and "elimianting the criminal's use of technicalities". The more they talked the talk, the more they walked the walk.

The sad result over time is the situation we now find ourselves in where technicalities (read: the Constitution) be damned, the government and justice system is to be used as just another partisan tool. The Attorney General of the United States dismissively brands the Genevea Conventions as "quaint" and inconsequential. The President of the United States belligerently ignores the Constitution screaming that "it's just a damn piece of paper". The Executive Branch acts, and thinks, like Article II of the Constitution (the one delineating and defining the Executive Branch) is the only portion that exists. This is what happens when political goals (the results) trump adherence to the principles of the system (the process). There is no way to excise politics completely because it is inherent in the process at hand; however, it must not be the guiding intent. If the fundamental process can be restored and borne out, our victory will flow therefrom automatically.