Originally published in Slate Magazine November 11, 2004
Copyright 2004 Microsoft Corporation
By: Phillip Carter
There
is a great deal to admire about White House Counsel Alberto Gonzales,
whom President Bush nominated yesterday to replace John Ashcroft as
attorney general. His dossier reads like a 20th Century American Dream
"born to migrant farm workers in San Antonio; raised in Houston;
enlisted service in the U.S. Air Force, then the U.S. Air Force
Academy; Rice University; Harvard Law School; partnership in an elite
law firm; a seat on the Texas Supreme Court "and now, finally,
appointment to the position of attorney general. And Gonzales' meteoric
rise may not stop there "he's widely considered to be on Bush's
shortlist for nomination to the Supreme Court.
However,
before the Senate gives its advice and consent to Gonzales' nomination
as the nation's chief law-enforcement officer, he does have some
explaining to do. One set of questions grows out of Gonzales' work for
then-Gov. Bush as his lawyer in the Texas Statehouse, where critics
allege his work on death penalty cases fell far short of what a
professional attorney in that position should have provided the
governor. The second set of questions arises from the decision adopted
by the White House, apparently on advice from Gonzales and other
administration lawyers, to set aside the Geneva Conventions and other
laws as part of the global war on terrorism. His conduct in both
situations raises significant questions about Gonzales' lawyering
skills and his apparent willingness to sacrifice the rule of law for
the policy positions of his client, George W. Bush.
The
state of Texas executed 150 men and two women during Bush's six-year
tenure as governor "a rate unmatched by any other state in modern U.S.
history. As governor, Bush had statutory power to delay executions and
the political power to influence the state Board of Pardons and Paroles
to commute them entirely, where there was a procedural error, cause for
mercy, or a bona fide claim of innocence. Then-Gov. Bush assigned
Gonzales a critical role in the clemency process "asking him to provide
a legal memo on the morning of each execution day outlining the key
facts and issues of the case at hand. According to Alan Berlow, who
obtained Gonzales' memoranda after a protracted legal fight with the
state of Texas and wrote about them in the July/August 2003 issue of
the Atlantic Monthly, Gonzales' legal skills fell far short of the mark
that one might expect for this serious task:
A
close examination of the Gonzales memoranda suggests that Governor Bush
frequently approved executions based on only the most cursory briefings
on the issues in dispute. In fact, in these documents Gonzales
repeatedly failed to apprise the governor of crucial issues in the
cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence.
On
the basis of these memos, Gov. Bush allowed every single execution
"save one "to go forward in his state. It's not clear whether Bush
directed Gonzales to provide such superficial and conclusory legal
research, or whether Gonzales did so of his own accord. Regardless, the
point remains that the White House's new nominee to head the Justice
Department turned in work that would have barely earned a passing grade
in law school, let alone satisfy the requirements of a job in which
life and death were at stake. Perhaps more important, these early memos
from Texas revealed Gonzales' startling willingness to sacrifice
rigorous legal analysis to achieve pre-ordained policy results at the
drop of a Stetson.
The second set of tough
questions arises out of Gonzales' work on a series of legal policies
adopted by the Bush administration as part of the war on terrorism. As
White House counsel, Gonzales played a key role in pushing the
administration to brand the Geneva Conventions obsolete and quaint and
to unilaterally declare them inapplicable to al-Qaida and the Taliban.
Gonzales played a key role in the decision to use Guantanamo Bay as a
global detention facility because it was believed to be outside the
reach of U.S. courts and the rule of law. (The Supreme Court held
otherwise in Rasul v. Bush in June 2004.)
And,
perhaps most disturbingly, Gonzales sat at the apex of the storm that
swirled within the Bush administration's legal ranks over the use of
coercive interrogation practices and torture to extract information
from detainees in Cuba, Afghanistan, and Iraq. One of the torture
memos, produced in this period by the Justice Department's Office of
Legal Counsel for Gonzales, argued that the president had the
extra-constitutional power to nullify both the Geneva Conventions and
the federal war crimes statute when he deemed it necessary, based on
his inherent authority as commander in chief of the armed forces.
Another memo, produced by the Defense Department's lawyers, opined that
an interrogator was guilty of torture only if he act[ed] with the
express purpose of inflicting severe pain or suffering on a person
within his custody or physical control. Together, these legal policies
and memoranda adopted by the Bush administration on Gonzales' watch for
the war on terrorism had the effect of eviscerating the nation's
institutional, moral, and legal constraints on the treatment and
interrogation of prisoners. President Bush and Defense Secretary Donald
Rumsfeld may not have personally ordered the abuses at Abu Ghraib, but
on advice from lawyers like Gonzales, they adopted policies that set
the conditions for those abuses and the worst scandal to affect the
U.S. government since Watergate. Yet, despite the incredible damage
done by this scandal to the nation's political and moral standing in
the world, not to mention its prospects of winning hearts and minds in
the Middle East, no one of any significance has yet answered for these
policies. Indeed, it appears many of the lawyers responsible for Abu
Ghraib have been rewarded "OLC chief Jay Bybee now sits as a judge on
the 9th Circuit Court of Appeals; Pentagon General Counsel William
Haynes II was nominated (but not confirmed) for a seat on the 4 th
Circuit; and now Gonzales stands to be promoted, too.
In
the days since the presidential election, the conventional wisdom has
emerged that President Bush won re-election on the basis of values. And
fittingly, he has pledged to govern on the basis of his mandate from
the American people to implement those values. But the Gonzales
appointment makes clear that the Bush administration prizes certain
values "such as personal loyalty as the president's consigliere "over
more democratic ones such as accountability and a commitment to the
rule of law. With the exception of an unusual joint press conference
with the Pentagon's top lawyers, Gonzales has never publicly accounted
for his role in creating the Bush administration's flawed legal
policies in the war on terrorism. Similarly, he has never accounted for
his performance as counsel to then-Gov. Bush in Texas and the dreadful
clemency memos he was responsible for while there. Thus far, the
administration has deflected inquiry into these matters (and others)
using a variety of legal tactics, including both executive privilege
and attorney-client privilege. But if President Bush is serious about
governing on the basis of values, then he ought to consider this to be
one of his first big tests. Either he can continue to promote loyalty
and secrecy in the White House, by fighting Congressional oversight
every step of the way and instructing Gonzales to remain silent during
his confirmation hearings, or he can walk the walk of a president who
cares about values like integrity and accountability, by allowing the
Senate to inquire fully into Gonzales' track record and his fitness to
lead the Justice Department.