Opinion

Judge bad choice for Iraq intel probe

Retired federal Judge Laurence Silberman is not the right person to co-chair the Iraq intelligence commission, a job that requires fairness, nonpartisanship and good judgment. Many who know him - including onetime Nixon aide and respected author Kevin Phillips, former independent counsel Lawrence Walsh and author and reformed right-wing activist David Brock- raise serious concerns about Silberman's belligerent temperament, hyper-partisanship, poor judgment and questionable ethics. Silberman's strikingly different views on independent counsel investigations of the executive branch suggest he has two standards of justice: one for his friends and ideological soul mates and another for those he perceives as enemies. In 1987, while independent counsel Alexia Morrison investigated the Reagan administration, the U.S. Court of Appeals for the D.C. Circuit ruled the independent counsel statute was unconstitutional. Silberman, who was appointed to his seat by Reagan, wrote that the office of independent counsel "so deeply invades the president's executive prerogatives and responsibilities and so jeopardizes individual liberty as to be unconstitutional." Silberman said the independent counsel "obstructs the president's ability to execute the law." In a 7-1 decision, the U.S. Supreme Court reversed Silberman's ruling, holding that the independent counsel law was constitutional. In 1998, when independent counsel - and Silberman colleague on the D.C. Circuit - Kenneth Starr investigated the Clinton administration, Silberman's take was decidedly different. Gone were worries about "the president's ability to execute the law." Instead Silberman argued "no one" in the federal government should be permitted even to appear in court and disagree with the independent counsel on the issue in question. Although Silberman said this result was required by the Supreme Court's ruling upholding the independent counsel law, not a single one of his colleagues agreed with his opinion. In fact, as Jonathan Groner of Salon.com wrote, using "language seldom seen in the federal judiciary, Silberman questioned whether Clinton himself, by allowing his aides to attack Starr, was 'declaring war on the United States.' " Silberman's bias against those investigating his friends in office was comprehensive. When Walsh was serving as the independent counsel investigating the Reagan administration's involvement in the Iran-Contra affair, he found his staff could not get a fair hearing from Silberman. When Walsh's office tried to make the case against Iran-Contra conspirator Lt. Col. Oliver North, Silberman cut them off at every turn. Walsh wrote, "Silberman's bias had been so intrusive that it had almost prevented a lawyer representing the independent counsel's office from presenting a coherent argument." Walsh concluded, "At times, the judge's sole purpose seemed to have been diversion and obstruction." Ultimately, Silberman was part of a 2-1 appeals court ruling overturning North's conviction on procedural grounds. In David Brock's book, the author describes how Silberman frequently crossed the line from impartial jurist to unabashed partisan as he devised strategies to attack Anita Hill during the Clarence Thomas confirmation process and then later President Clinton. "Larry would often preface his advice to me with the wry demurrer that judges shouldn't get involved in politics - 'That would be improper,' he'd say - and then forge ahead anyway." (Such involvement in political activities would be in violation of judicial ethics.) Demonstrating remarkable hypocrisy, Silberman has accused federal jurists of violating judicial ethics with activities that were far less partisan and political than those in which he has engaged. In 1991, for example, he responded with indignation to a piece by federal appeals court Judge Jon Newman urging the first President Bush to withdraw the Thomas nomination. Later, after Judge A. Leon Higginbottham Jr. wrote an open letter to the newly-confirmed Justice Thomas, Silberman said the letter "breached any conceivable standard of judicial ethics." But in a November 2002 speech, Silberman, by this point a senior judge on the Court of Appeals, sharply criticized Supreme Court decisions on abortion, religion and gay rights, declaring, "I do not think it even can be seriously argued that any of these lines of decision had a shadow of true constitutional justification. "How does the court get away with it? It maintains its legitimacy so long as its activist opinions coincide with the views of a broad national consensus of elite opinion." The commission that has been set up to investigate and evaluate American intelligence efforts before the Iraq war has an important task and should inspire confidence in its fairmindedness. It should not be co-chaired by a man with a record of resisting investigations of his political allies and letting politics dictate his judgment. President Bush can and should do better.