Gonzales: Judges unfit to rule on terror policy

updated 8:07 a.m. ET Jan. 17, 2007

WASHINGTON - 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.”

The text of the speech, scheduled for delivery at the American Enterprise Institute, was obtained Tuesday by The Associated Press. It outlines, in part, what qualities the Bush administration looks for when selecting candidates for the federal bench.

“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,” Gonzales says in the prepared speech. “That, for example, a judge will never be in the best position to know what is in the national security interests of our country.”

Challenges to Bush policies
Gonzales did not cite any specific activist jurists, or give examples of national security cases, in his prepared text. The Justice Department is appealing an August decision by U.S. District Judge Anna Diggs Taylor in Detroit, who ruled the government’s warrantless surveillance program unconstitutional and ordered it stopped immediately.

The Justice Department appealed her decision and the 6th U.S. Circuit Court of Appeals in Cincinnati has ruled that the administration can keep the program in place during the appeal.

Attorneys representing terrorism suspects held at Guantanamo Bay are challenging the legality of a law, signed by President Bush in October, that authorizes military trials. Those challenges raise the possibility that trials will be struck down by a federal appeals court or the Supreme Court.

Gonzales, a former Texas Supreme Court justice, has in the past warned about judges who inject their personal beliefs in cases. But his prepared remarks Wednesday mark his sharpest words over concerns about the federal judiciary — the third, and equal, branch of government.

Judges who “apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and authority of the judiciary,” Gonzales says. “In so doing, they undermine the rule of law that strengthens our democracy.”

Even so, Gonzales characterized efforts to retaliate against unpopular rulings as misguided, noting a failed South Dakota proposal to sue or jail judges for making unpopular court decisions. He also called for Congress to consider increasing the number of federal judges to handle heavy workloads, and to offer them higher salaries to lure and keep the best jurists on the bench.

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