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Taking Liberties | The Nation

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Taking Liberties

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Cabinet nominees are not known for going out on a limb. So when White House counsel Alberto Gonzales intoned at the press conference announcing his nomination to be Attorney General that "the American people expect and deserve a Department of Justice guided by the rule of law," observers could be forgiven for suppressing a yawn. Except that in this day and age, a Justice Department guided by the rule of law is a positively revolutionary concept. Under the leadership of John Ashcroft, the department has spent the past three years treating the rule of law as at best an inconvenient obstacle, at worst a source of nitpicking that "only aids terrorists."

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About the Author

David Cole
David Cole
David Cole (@DavidColeGtown), The Nation's legal affairs correspondent, is the author, most recently, of The Torture...

Also by the Author

In ruling that police may not search cellphones without a warrant, the Court brought the Fourth Amendment into the twenty-first century.

That was when the Bureau of Investigation—the forerunner of today’s FBI—first opened a file on the magazine.

So, restoring the rule of law to the halls of Justice would be a great idea. But is Alberto Gonzales really the man to do it? A review of his record suggests that he has not shown any particular fealty to the rule of law, and has, in fact, been at the forefront of Administration efforts to subvert it.

Start with the fact that in the internal Administration debates over how to try terrorists--which as White House counsel he coordinated--Gonzales makes Ashcroft look like a voice of reason. According to a detailed behind-the-scenes account by Tim Golden for the New York Times, Ashcroft advocated trying terrorists in the criminal justice system and warned that the procedures for military tribunals would be seen as "draconian." Gonzales sided with the extremists. He urged military tribunals, disfavored any civilian participation and even opposed giving defendants a presumption of innocence. Those views prompted objections within the Administration, from military and State Department lawyers, Secretary of State Colin Powell, even National Security Adviser Condoleezza Rice. Gonzales's response? He reportedly kept them out of the loop, leaving the real decision-making to an inner core of Federalist Society conservatives.

In January 2002 Gonzales wrote a memo to the President arguing that Geneva Convention protections should not extend to the prisoners at Guantánamo. Gonzales wrote that in the war on terror, the Geneva Conventions are "obsolete" and "quaint" and would impede the interrogation of enemy combatants. It is only a few short steps down the slippery slope from that view to the torture US agents have inflicted on detainees in Iraq, Guantánamo and elsewhere.

One giant step down that slope may have been the infamous "torture memo" of August 1, 2002. Gonzales didn't write this one--it was drafted by the Justice Department's Office of Legal Counsel--but he's the only person on the "To" line, which means he must have requested it. Its clear intent is to evade the mandates of federal criminal law and international treaties banning torture. According to the memo, detainees may be threatened with death, as long as it's not imminent death, and may be subjected to physical pain, as long as it's less than that which accompanies "serious physical injury, such as organ failure." Perhaps most troubling, it argues that the President cannot be bound by laws forbidding torture, because that would "violate the Constitution's sole vesting of the commander-in-chief authority" in him.

When the torture memo was leaked in the summer of 2004, in the wake of the Abu Ghraib scandal, Gonzales denounced it as "irrelevant and unnecessary." But why didn't Gonzales do so when he first received the memo nearly two years earlier? Why did it find its way almost verbatim into a Pentagon memo on interrogations six months later? And why did he request the memo in the first place? Until these questions are answered, the rule of law will not be restored.

The reasons to question Gonzales's commitment to the rule of law do not stop at his role in combating terror. Gonzales previously served as counsel to then-Governor Bush in Texas, and in that capacity had the unenviable task of advising the governor on whether to exercise his pardon power with respect to upcoming executions. During his tenure, Gonzales wrote memos and briefed the governor on fifty-seven executions. In every case, Bush let the execution go forward. Alan Berlow obtained and reviewed Gonzales's memos, which served as the basis for Bush's decisions, and wrote for The Atlantic Monthly that they "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." No decision is more important than whether to put a person to death (although whether to torture him surely comes close), yet Gonzales's memos consistently left out the best arguments for favoring life. Much as he did during the formulation of the tribunal policy, Gonzales screened out dissenting views.

Senator Charles Schumer has said that Gonzales is "a better candidate than John Ashcroft." But that's a pretty low standard. Wouldn't it be better to take Gonzales at his word, and ask whether he can restore the rule of law? Nowhere has that value suffered more than in the Administration's policies on the detention, interrogation and torture of prisoners of war. How is a man who made Ashcroft appear moderate on those issues going to restore what Ashcroft has torn asunder?

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