The Quaint Mr. Gonzales
By Marjorie Cohn
t r u t h o u t | Perspective
Saturday 13 November 2004
Most Republicans and many Democrats have hailed Bush's nomination of
White House counsel Alberto Gonzales for attorney general as a brilliant
choice. Whereas John Ashcroft ruffled feathers with his coarse warnings that
opponents of Bush's post-9/11 agenda "only aid terrorists," the soft-spoken
Gonzales is much more palatable. And he's Hispanic to boot, so the Bush
cabinet diversity quotient won't change when Colin Powell steps aside in the
second term. Some Democrats will ask tough questions during Gonzales's
confirmation hearing. But it would be unseemly for Democrats to seriously
challenge the nomination of the first Latino Attorney General of the United
States.
The right-wing Republicans who propelled Bush to a second term are
relieved Gonzales was tapped to head the Department of Justice, and not to
be a justice of the Supreme Court. Gonzales's views on abortion are too
liberal for them, but they don't see him doing damage to their "pro-life"
position as the nation's top cop. Tom Minnery, vice president for public
policy at the Colorado-based Focus on the Family, confirmed that Gonzales
would be objectionable as a judicial nominee because he does not have
"strong pro-life beliefs." However, Minnery's group would support Gonzales's
appointment as attorney general.
But the New York Times reports that Republicans close to the White
House claim the nomination of Gonzales for attorney general is "part of a
political strategy to bolster Mr. Gonzales's credentials with conservatives
and position him for a possible Supreme Court appointment." One Republican
said the nomination hearings on Gonzales would also "get out of the way" the
debate over the legal memos Gonzales prepared and supervised as White House
counsel.
Notwithstanding his mild-mannered appearance, Gonzales is the iron fist
in the velvet glove. Gonzales, whom Bush affectionately calls "mi abogado"
("my lawyer"), wrote one of the most outrageous torture memos. On January
25, 2002, Gonzales advised Bush that "the war on terrorism is a new kind of
war, a new paradigm [that] renders obsolete Geneva's strict limitation on
questioning of enemy prisoners and renders some of its provisions quaint."
Oh really? The "quaint" Geneva Conventions are treaties ratified by the
United States, and therefore part of the supreme law of the land under our
Constitution.
Gonzales also provided Bush with novel defenses against potential war
crimes prosecutions that might result from torturing prisoners captured in
Afghanistan. The 1996 War Crimes Act says that grave breaches of the Geneva
Conventions are war crimes. Thus, the definition of war crimes includes
torture, inhuman treatment, and willful killing, as well as outrages against
personal dignity. Gonzales advised Bush that he could avoid allegations of
war crimes by simply declaring that Geneva doesn't apply to the war against
the Taliban and Al Qaeda in Afghanistan.
When Colin Powell saw Gonzales's memo, he reportedly "hit the roof."
Powell wrote a counter-memo to Gonzales and Condoleezza Rice, warning of the
immense damage this could do to the United States - legally, politically,
militarily, diplomatically, and morally. To declare that the Geneva
Conventions did not apply, Powell wrote, "will reverse over a century of
U.S. policy and practice in supporting the Geneva conventions, and undermine
the protection of the law of war for our troops, both in this specific
conflict and in general."
Powell was right. The Geneva Conventions contain no loopholes that
would allow the torture and inhuman treatment of prisoners. Even if a
captive did not qualify for prisoner-of-war status under the Third Geneva
Convention, he would be protected by the Fourth Geneva Convention on the
treatment of civilians during wartime. And article 3 of both conventions
prohibits torture, and humiliating and degrading treatment against anyone
who is no longer fighting. It is well-established that article 3 applies to
international, as well as internal, conflicts.
Bush didn't listen to Powell. On February 7, 2002, Bush declared that
Geneva would not apply to Al Qaeda. He added that he had "the authority to
suspend Geneva as between the United States and Afghanistan," but declined
to exercise it at that time. Geneva "will apply to our present conflict with
the Taliban," Bush said. But then, in a striking example of double-speak, he
determined they were "unlawful combatants," ineligible for hearings to
decide whether they were prisoners-of-war under the Third Geneva Convention.
(Under the terms of Geneva, only a "competent tribunal" can make that
determination). Bush also proclaimed that article 3 of Geneva didn't apply
to either Al Qaeda or the Taliban prisoners.
After the pornographic torture photos, and memos justifying torture,
leaked out last April, it was Gonzales who was charged with damage control.
While being run out of town, Gonzales made it look like a parade by
releasing more memos - though not all of them, then admitting to reporters
that Team Bush "felt that it was harmful to this country, in terms of the
notion that perhaps we may be engaging in torture."
Another controversial memo, dated August 1, 2002, from the Justice
Department's Office of Legal Counsel to Gonzales, was one of the leaked
documents. It opined that under the president's powers as commander in
chief, interrogators who torture Al Qaeda or Taliban prisoners could be
exempt from torture prosecutions.
Gonzales, still trying to stem the rising tide of outrage, said the
August memo and another one from the Pentagon had only been meant to
"explore the limits of the legal landscape." To his knowledge, said
Gonzales, they "never made it to the hands of soldiers in the field, nor to
the president."
In his January 25, 2002 memo, Gonzales also outlined plans to use
military commissions to try prisoners, in order to deny them due process
protections afforded by military and civilian courts. In a significant
defeat for the Bush administration, a federal district court judge in
Washington D.C. ruled earlier this week that the military commissions
violate the Geneva Conventions, and were unlawfully constituted because
Congress had not authorized them. The military commissions have been
suspended indefinitely.
Gonzales's sordid record goes beyond his apologies for torture of
prisoners. When he was counsel to Texas Governor George W. Bush from 1995 to
1997, Gonzales provided his boss with "scant summaries" on capital
punishment cases that "repeatedly failed to apprise the governor of crucial
issues: ineffective counsel, conflict of interest, mitigating evidence, even
actual evidence of innocence," according to the Atlantic Monthly.
Gonzales prepared 57 such summaries, including one regarding the case
of Terry Washington, a mentally retarded man executed for murdering a
restaurant manager. The jury was never told about his mental condition.
Gonzales's three-page summary of the case for Bush mentioned only that
Washington's defense counsel's 30-page plea for clemency (which covered the
mental competency issue) was rejected by the Texas parole board. Bush
refused to stay executions in 56 of the 57 cases in which Gonzales wrote
abbreviated memos.
Moreover, Gonzales helped write the USA Patriot Act, and managed Bush's
selection of judicial nominees, most of whom had to pass a right-wing
ideological litmus test. (See my editorial, Bush's Judges: Right-Wing
Ideologues.)
When Gonzales was Chief Justice of the Texas Supreme Court, Dick
Cheney's Halliburton was the second-largest corporate contributor to Texas
Supreme Court races. Over a seven-year period, five Halliburton cases went
before that court, and it consistently ruled in favor of Halliburton. And
although Gonzales lawfully accepted $14,000 from Enron, he did not recuse
himself from the administration's investigation of the Enron scandal when he
was White House counsel.
From 2000 to the present, Gonzales led the Bush administration's
obstruction of Government Accountability Office access to documents from
Cheney's secret energy policy meetings.
Alberto Gonzales has been a loyal foot soldier, walking in lockstep
with George W. Bush, for years. As head of the Justice Department, we cannot
expect Gonzales to lead independent investigations of the widening probe of
Halliburton, or the illegal leak of the identity of a CIA agent by an
official of the Bush administration.
In spite of opposition to Gonzales's nomination by public interest
groups such as the Center for Constitutional Rights and Human Rights Watch,
Democratic Senator Joseph Biden said "I think he's a pretty solid guy."
Unless the Democrats in the Senate show some backbone, and block the
nomination of Alberto Gonzales with the only arrow left in their quiver -
the filibuster, we will be saddled with another attorney general who mounts
vicious assaults on our civil rights.
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