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A Model of a Modern Attorney GeneralThe limitations of legal judgment in the war on terror.

By Dahlia Lithwick
Posted Wednesday, Sept. 12, 2007, at 5:47 PM ET
James Comey. Click image to expand.

The looming announcement of the president's pick to replace Alberto Gonzales as attorney general has occasioned speculation about which prominent attorney on President Bush's short list could easily be confirmed. Michael Chertoff is out. Ted Olson is a front-runner. This makes for some fascinating inside-baseball chatter—how much of a fight is the president looking for, and how much will Olson have to account for his alleged ties to the Arkansas Project? But the chatter misses an important opportunity for an overdue public conversation about the role of the president's lawyers, be it White House counsel, the attorney general, or elsewhere in the Justice Department.

A confirmation fight in a vacuum—one that does not include a good, hard look at what happened to the Justice Department under Gonzales, how to fix it, and the proper role of attorneys and attorneys general in a national security crisis—is a lost chance. Nobody believes the cancer at Justice is gone with Gonzales' departure, so now is the time to reflect soberly on what kind of lawyering at the top will cure what ails DoJ.

Whole books have been and will be written about what's gone wrong at this Justice Department, ranging from partisan political criteria used in hiring to pressing federal prosecutors into service as Karl Rove's personal vote-fraud vigilantes. It's increasingly tempting to lionize John Ashcroft as the consummate conservative attorney general based on the two simple facts that: 1) He once told the president "no"; and 2) he isn't Alberto Gonzales. Those two criteria are necessary but not sufficient in selecting the next attorney general.

Perhaps the best way to diagnose the pathology of Bush's highest-ranking lawyers is in the observations of some of those lawyers themselves. This morning, Marty Lederman links to a 2005 speech by former Deputy Attorney General James Comey reprinted in the Green Bag. The speech was delivered at the NSA in Maryland, just months before Comey left the department. It's worth reading in its entirety as a thoughtful meditation on what lawyers do, and what they do best. But knowing what we now know about Comey's role in resisting Bush administration programs he believed illegal, the most revealing part of his speech is the section titled "Intelligence Under the Law—The Value of No."

Comey notes that it can be nearly impossible for lawyers working in the intelligence community to say no, because in response they tend to hear the words: "If we don't do this, people will die." (The this in question ranges from approving new data collection methods, to interrogation techniques, to expanding executive authority.) For Comey, when there's a collision between the duty to protect life and the duty to protect the Constitution, the tie cannot always go to preserving life. Some people may call this empty legalism. Comey sees it as promoting the rule of law.

He notes that the legality of hasty choices made in the heat of battle will not be weighed in the heat of battle, but "in a quiet, dignified, well-lit room, where they can be viewed with the perfect, and brutally unfair vision of hindsight." But that same "unfair" hindsight isn't just a pesky inconvenience. It preserves something larger: "The reputations of our great institutions." Comey testified this summer that "I don't know any way you can get the department's reputation back" if allegations about its recent politicization proved true; in his speech, we see that for him, the reputation of the DoJ is not just an abstraction.

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Dahlia Lithwick is a Slate senior editor.
Photograph of James Comey by Alex Wong/Getty Images.
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