Despite concern for Alberto Gonzales’ obvious difficulties with the rule of law, Senate Dems do not appear to be gearing up for a serious fight. I’m still interested in his confirmation hearings, though, because I have no idea how he’ll answer some of the tougher questions.
Phil Carter offered a helpful summary, for example, on Gonzales’ outrageous and unprecedented approach that helped lead to widespread torture. It’s the one subject Gonzales will find it hard to spin out of.
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.
I’m wondering how Gonzales will deal with this without admitting that the White House was wrong.
To be sure, reasonable people will find it impossible to defend legal memoranda that argue that the president can ignore laws he doesn’t like whenever he feels it’s necessary. Yet that’s exactly what Gonzales said. When questions about these legal opinions surface during his confirmation hearings, will Gonzales admit that the White House made a tragic misjudgment? If so, it’ll be the first acknowledgement of a mistake that led to widespread torture (a mistake which Gonzales personally helped facilitate). If not, the Senate will be confirming a man as the top law enforcement official in the United States that believes his good buddy, the president, is literally above the law.
I should note that Dems may not be the only ones who have a problem with this. In June, John McCain took Gonzales to task in a Wall Street Journal op-ed
Some also have argued that the Geneva Conventions have been rendered quaint by the new circumstances in which we find ourselves. We do face a new enemy in the global war on terror, and much of our ability to disrupt attacks and destroy terrorist cells depends on the quality of intelligence we gather from detainees. Yet nothing in the Conventions precludes directed interrogations. They do, however, prohibit torture and humiliation of detainees, whether or not they are deemed POWs. These are standards that are never obsolete — they cut to the heart of how moral people must treat other human beings. They also are the principles on which the liberation of Iraq is based. We are bringing to Iraq a new day, an era that is better in all ways than the tyranny of Saddam Hussein. This era replaces terror, humiliation and arbitrary rule with freedom, human rights and the rule of law.
A rule of law that, apparently, Gonzales thinks very little of.
Carter added another important point: none of the lawyers who created the framework that permitted torture has been fired. Indeed, they’ve all been offered promotions.
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 4th Circuit; and now Gonzales stands to be promoted, too.
There was a time it seemed the torture scandal was going to tear the Bush White House apart. How naïve. Bush was rewarded with a second term, Rumsfeld was labeled a “superb” Defense Secretary, and the lawyers involved have all fallen up as a result of the crisis.
I’ve long since run out of adjectives to describe this gang.