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Putting "Justice" Back Into D.O.J.

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Sometimes the good news can slip right past us, so it's important to savor it when it happens. New Attorney General Eric Holder is the source of this month's cautious hope that the rule of law is returning to the Department of (irony intentionally withheld) Justice.

Several weeks ago, Holder set the hearts of rule-of-law junkies aflutter when he directed that the government abandon its long-held position that Ali Saleh Kahlah Al-Marri, a legal resident of Peoria, IL, could be detained indefinitely by the military without ever being charged with a crime. Now Al-Marri is preparing for trial in an Illinois federal court, just the way the Framers of the Constitution intended.

Last week the news was more startling: the Justice Department was throwing in the towel in its prosecution of longtime Republican Sen. Ted Stevens of Alaska. Confronted with evidence of substantial misconduct by Stevens' prosecutors -- including the suppression of evidence that contradicted star government witnesses -- Holder directed that the charges be dismissed.

This, brothers and sisters, is a big deal. It takes a lot of work to nail a sitting senator, and it had to hurt to give up the convictions returned last fall by a District of Columbia jury.

In doing so, Holder gave every indication that he actually believes the statement painted on the wall outside the office of the Attorney General: ''The United States wins its point in court when justice is done.'' The new Attorney General is bound to have some rocky times during his term in office, but he's entitled to enjoy the thought that he has begun to retrieve the reputation and self-respect of an agency that was savaged by the last administration.

The litany of outrages from the last regime is long:

-- The politically-motivated firing of United States Attorneys;

-- The use of prosecutorial powers to suppress voter registration efforts;

-- The approval of torture;

-- The application of political litmus tests in the hiring of line attorneys, whose job performance should never turn on their political thinking;

-- the approval of unprecedented intrusions on personal communications of American citizens.

The current, bracing moment of DOJ glasnost should not obscure the problems that the Bush Justice Department brought front-and-center: When the president's lawyers are not independent of the president, there is a material risk that the rule of law will suffer.

This was one of several trenchant points set out by Prof. Garrett Epps in a recent article in The Atlantic. Epps urged the intriguing proposal that the Attorney General be elected directly by the people, to ensure that the nation's chief lawyer will not be the toady of the president. After all, forty-seven states elect their state attorneys general, so that approach is widely followed by . . . Americans!

Making the position elected, which would require a constitutional amendment, would surely change it in some ways, not all of which would be terrific. Political campaigns would focus on hot-button social issues like drug enforcement, the death penalty, terrorism, and abortion. Pandering will ensue. Then again, most of our political campaigns already have those characteristics.

An elective office will draw a different type of person than we are used to having as Attorney General. Candidates will have to be skilled in political persuasion, campaigning, and fund-raising. Also, fund-raising.

But the current system has given us Attorneys General who were (i) the president's brother (Robert Kennedy), and (ii) a presidential sidekick nicknamed "Fredo," evoking the hapless middle brother of the fictional Corleone clan (Alberto Gonzales). It's hard to think that Madison and Washington dreamed of a government whose chief legal officer would have those qualities.

Moreover, electing the attorney general would not strip the president of intimate legal advisers. With the metastatic growth of the Office of White House Counsel, President Obama can turn to upwards of 20 lawyers on delicate issues. Why shouldn't the people also have their own lawyer?

We are supposed to have a government of laws, not of men. An independent Department of Justice might turn out to embody the principles of justice all the time, not just when we are lucky enough to have an Attorney General dedicated to enforcing the rule of law.