Soliciting Nominations for the Cox-Richardson-Ruckleshaus Award

Brian Tamanaha

One of the most disheartening aspects of the Bush Administration's assertion that it remains above the law (torture prohibitions and FISA) in its fight against terrorism has been the complicity of the Justice Department. Time and again Justice Department lawyers have lined up to defend the dubious legality of the Bush Administration's position on these issues.

Justice Department lawyers answer to a higher authority than the President. Their solemn oath is to uphold the law, even when contrary to the President's wishes. A glorious moment in the history of the Justice Deparment took place in the clash with President Nixon. Special Watergate Prosecutor Archibald Cox subpoenaed Nixon's tapes. Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused this direct presidential order and resigned. Nixon then ordered Assistant Attorney General William Ruckelshaus to fire Cox, who also refused. Solicitor General Bork finally carried out the deed.

This remains one of the most important events in the history of our nation's commitment to the rule of law.

The question is: where are the Justice Department lawyers who have resigned, or want to resign, rather than carry out or attempt to justify Administration policies that flout the law? They must be out there, since many Justice Department lawyers are honorable women and men. Perhaps they left in quiet protest, or are resisting internally in every way they can.

The internal resistance of Alberto Mora to the Administration's torture policy has been revealed, but he worked in the Defense Department. Former high ranking Justice Department lawyer David Kris recently condemned the legality of the warrantless surveillance program, but he is no longer with the Justice Department. Apparently, former Attorney General Ashcroft raised objections to the program early on, though the details of his resistance have not been fully disclosed.

The principle that the President is not above the law is under threat today. This is another pivotal moment in the history of our country. Administrations come and go, but respect for the law by government officials is a national legacy that each generation must preserve and pass on to the next.

Any Justice Department lawyers who step forward and explicitly resign (or announce that they previously resigned) in protest of these illegal policies would commit a brave act of principle, with immense national significance. Imagine the impact if a group of past and present Jutice Department lawyers collectively made this announcement. History would adjudge them national heroes in the Cox-Richardson-Ruckleshaus tradition.

ADDENDUM: A reader pointed me to a Newsweek report which indicates that James Comey and Jack Goldsmith left the Justice Department in protest. If that is correct, hooray for them! They are deserving nominees for acting pursuant to a great tradition. There must be more Justice Department attorneys out there who left, or who feel a compulsion to leave, for similar reasons. The principle of fidelity to the law obtains the most benefit, however, if a resignation in protest is widely known. Such public disclosure may be seen a betrayal of loyalty, and might have adverse career consequences, so it is understandable that this would be kept quiet, but something large is at stake.
Posted 10:23 AM by Brian Tamanaha [link]