Loyal to a fault?

The law, lawyers, and the court.
Nov. 11 2004 1:35 PM

Loyal to a Fault?

The Senate should hold Alberto Gonzales accountable for his bad legal advice.

Does Gonzales have what it takes?
Does Gonzales have what it takes?

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.

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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.

Phillip Carter is a former Army officer who writes on legal and military affairs from Los Angeles.

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