The president's lawyer

No single incident in the “war” on terror has done more to damage America’s credibility and moral stature, or to fuel the indignation and ambitions of Islamic terrorists in Iraq and throughout the Middle East, than the torture of Iraqi prisoners by U.S. soldiers at the Abu Ghraib prison. Contrary to the Bush administration’s assertions that “a few bad apples” were responsible for the torture, it is evident that a policy sanctioning the use of coercive interrogation methods was set at the very highest levels of the administration. Incidents of torture using identical “techniques” have occurred in U.S.-run prisons from Afghanistan to Guantánamo Bay (see Peter Dula, page 12).

One of the chief architects of this militarily ineffective and morally bankrupt policy was Alberto Gonzales, President George W. Bush’s White House counsel. It was Gonzales who penned a now notorious memo describing the Geneva Conventions as “obsolete.” He was among those who urged the president to place so-called enemy combatants in Guantánamo Bay, where U.S. and international law on the treatment of prisoners would not apply-or so Gonzales claimed. Gonzales also played an important role in a series of legal briefs giving the CIA and the military more latitude to use force to extract information from suspected terrorists. One Justice Department memo set the bar defining torture so high-as “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death”-that it reads like a virtual mandate for the sort of abuse practiced at Abu Ghraib. Mental torture was defined in a similarly facile way as psychological harm lasting “months or even years.”

The nation and the world now know the consequences of this administration’s effort to circumvent the law concerning the treatment of prisoners of war, yet the political damage and moral failure of this policy have not made an impression on the president. How else explain Bush’s recent nomination of Gonzales to become the next attorney general of the United States, the highest-ranking law enforcement officer in the land?

Gonzales’s record of misjudgment and blind political loyalty stretches back to Texas, where he served as Governor Bush’s general counsel. Gonzales’s level of concern for human rights and the rule of law was evident in his work briefing Governor Bush on any possible grounds for clemency in death-penalty cases. Gonzales was responsible for presenting Bush with a written summary of the facts of each capital case before any execution was to proceed. As Alan Berlow points out in the July-August 2003 Atlantic Monthly, Gonzales’s reports were cursory at best. For example, in the case of Billy Conn Gardner, a death-row inmate who had been convicted of shooting a cafeteria worker, Gonzales failed to tell Bush that two of the witnesses provided conflicting descriptions of the killer. In another case, Gonzales didn’t inform Bush that the convict’s lawyer was asleep during most of the jury selection.

In the interest of simple morality, let alone as an officer of the court, Gonzales should have provided Bush with the full details of each case. He seems to have clearly understood, however, that his client’s interest in the facts was limited even then.

Gonzales’s legal advice in Texas and as White House counsel raises serious questions about how far he will go as attorney general to further the political agenda of his long-time mentor. As White House counsel, he has broadly interpreted presidential powers of executive privilege and vigorously expanded government secrecy. He has been a strong defender, for example, of not providing Congress or the public with information about Vice President Dick Cheney’s meetings with energy industry executives to help formulate the nation’s energy policy. There is little in Gonzales’s record to suggest that he will aggressively defend the rightful independence of the Department of Justice when he becomes attorney general or change his mind about the subordination of constitutional rights to presidential authority.

Politically, it is not difficult to see why Bush has nominated his fellow Texan. In addition to his unwavering loyalty, Gonzales’s resumé is impressive: the son of immigrant farm workers, he graduated from Rice and Harvard Law School and served on the Texas Supreme Court. If approved as attorney general, Gonzales will be the nation’s highest-ranking Hispanic-American official. Appointing him is an obvious attempt to appeal to Hispanics, a vital group of swing voters who are more up for grabs than ever before (an unprecedented 44 percent voted for Bush in November).

Gonzales had been mentioned as a potential nominee for the Supreme Court, but his candidacy has been opposed by some prolife groups. While serving as a justice on the Texas Supreme Court, he ruled along with the court majority to uphold a state law that allowed a teenager to get an abortion without her parents’ knowledge or consent. It is widely believed that Gonzales would have been Bush’s top choice for the Supreme Court if not for his decision in that abortion case. There is speculation that his appointment as attorney general will allow him to prove his prolife bona fides, and thus pave the way for his eventual nomination to the High Court.

It is discouraging, if not entirely surprising, that the criticism of Gonzales by prolife groups has focused entirely on the single abortion ruling while ignoring his far more dubious record with respect to the death penalty and dispensing with legal safeguards against torture. The fundamentally flawed nature of Gonzales’s legal thinking was made clear in last spring’s U.S. Supreme Court ruling rejecting the administration’s efforts to deny the right to a trial to American citizens suspected of terrorism, and in a recent U.S. District Court’s decision halting special “military commissions” that tried suspected terrorists in Guantánamo because they violated the Uniform Code of Military Justice.

It should be a matter of grave concern, for Republicans and Democrats alike, that the nation’s future attorney general was instrumental in formulating both of these unconstitutional legal strategies.

Sadly, it appears that Gonzales will be quickly confirmed by the Senate in January. Democrats, it is said, are intent on conserving their political ammunition for the expected battle over the next Supreme Court justice’s views on abortion rights. If that is the case, the Democratic Party’s moral confusion will be exposed once again. Demanding answers from Gonzales about the errors in legal judgment that led to Abu Ghraib should be more important than blocking the appointment of justices who might overturn Roe v. Wade. The liberties of all Americans, not just unrestricted access to abortion, are at stake.

Published in the 2004-12-03 issue: 

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