Part II: Alberto Gonzales, Presidential Enabler
Three episodes in the career of Alberto R. Gonzales before he became Attorney General of the United States tell us what kind of a job he was likely do as the nation's top attorney at the Justice Department. In each instance, history has not been kind either to Gonzales' actual substantive work or to the ethical and moral judgment he exercised on behalf of his clients at the time. In each case, the advice Gonzales offered -- legally dubious to begin with -- created not just political embarrassment and backlash for his bosses, but unfortunate, even catastrophic results.
Not only did the three pre-Justice Department episodes turn out to be remarkable predictors for his troubled and disappointing tenure as Attorney General -- but many predicted two years ago that they might be. For example, Sen. Patrick Leahy (D.-Vt.) looked Gonzales in the eye at the latter's Senate confirmation hearing in January 2005 and said: "My concern is that during several high-profile matters in your professional career you've appeared to serve as a facilitator rather than as an independent force in the policy-making process."
Gonzales reassured Sen. Leahy -- and anyone else who cared to lodge the same complaint back then -- that he knew the difference between the role he would have to play as Attorney General and those he had played as White House counsel and as counsel to then-Texas Gov. George W. Bush.
But let us judge him by his deeds and not his words. The Attorney General's record at the Justice Department strongly suggests that he has still acted as a docile and dogged "facilitator" for White House initiatives rather than as a wise, high-minded legal counselor willing and able on occasion to exercise independent judgment and power. The roads to the current scandal over the dismissal of federal prosecutors, to the Justice Department's rabid support for warrantless domestic surveillance, and to department's tepid defense of civil liberties for resident aliens all are paved with stones that Gonzales and Bush laid down before the former took the oath of office in early 2005.
For the first two examples, I lean heavily upon the distinguished work of Alan Berlow, who brilliantly chronicled in the July/August 2003 issue of The Atlantic Monthly Gonzales' appallingly unprofessional work on death penalty cases when he was counsel for Gov. Bush. According to Berlow, Gonzales "repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence" (emphasis in original) in a series of memoranda Gonzales prepared for the governor's review as part of the state's clemency process. Berlow believes that this was not mere negligence on the part of Gonzales -- that would have been bad enough -- but rather part of a concerted effort by both men to ensure for both political and ideological reasons that there would be no clemency petitions granted. The dice were loaded, you might say, by the man who now is the nation's top lawyer.
In one clemancy case, Berlow accounts, Gonzales failed to include in a memo to Bush the fact that the lawyer for a death row inmate "had literally slept through major portions of the jury selection." In another case, Gonzales failed to include in a memo to Bush the fact that an important prosecution witness had recanted following trial or that an expert witness vital to the prosecution's case had been subsequently expelled from the American Psychiatric Association "because his testimony had repeatedly been found to be unethical." Berlow now tells me that he believes that Gonzales "put the end -- execution -- above the means, some sort of meaningful clemency review." This is precisely what Sen. Leahy was talking about when he spoke of Gonzales as a "facilitator" and precisely the opposite of the role the best attorneys general in our history have played.
When this vital story first emerged, back when the Bush Administration was flying high -- Mission Accomplished! -- and Gonzales was White House counsel, few media heavyweights gave the Texas clemency story much play.
Since then, however, we have seen a not-so-subtle shift in attitudes about death penalty procedures in this country, especially among judges and prosecutors who count. The trend now is toward giving capital defendants more protections, not fewer ones, even in Texas, and I daresay that whatever ambivalence observers may have felt back in 2003 about Gonzales' work on the clemency memos is now gone. It was shoddy business, all around, and the lawyer responsible for it should have been fired, not promoted.
The next charge in our bill of particulars against Gonzales also traces back to his days in the Lone Star State and provides us with a legal link from Texas' death row to the infamous Abu Ghraib prison in Baghdad. Once again, let's rely upon Berlow. Writing for slate.com in June 2004, he cited two examples wherein Gonzales legal advice to Gov. Bush ran afoul both of constitutional law and the Vienna Convention on Consular Relations. In one case, involving a Mexican national name Irineo Tristan Montoya, Berlow writes that Gonzales told Mexican officials that since Texas had not signed the Vienna Convention the state was not bound to determine whether local police had violated it when they arrested Montoya for murder. Problem is, as Berlow noted, Article 6 of the Constitution states that federal treaties are the "supreme law of the land" and cannot be trumped by state laws or policies. That's first-year law school stuff, by the way.
In another case Berlow chronicled, Gonzales described as a "harmless error" an acknowledged violation of the Vienna Convention in the case of a Canadian national named Joseph Stanley Faulder. Faulder was executed shortly thereafter. And then what happened? In March 2004, the International Court of Justice in The Hague ruled that America had violated on a wide scale the right of 52 Mexicans, including 15 in Texas. Now, we can argue about the scope of international laws and treaties and the effect they ought to have on our domestic legal system. But it is impossible to argue that the legal analysis Gonzales offered his boss in these cases have stood the test of time. And, of course, we see here in the stretching and bending of law and fact from Texas the clear precedent for the "torture" memos that no doubt will come above the fold when Gonzales' obituary, political and otherwise, is written.
Indeed, of Gonzales' "torture" memo of January 25, 2002, the one that helped beget Abu Ghraib and the predictable scorn and recriminations it has caused us abroad, there is not much to add to an already overflowing record that generates a black mark upon all who were involved. As White House counsel, Gonzales was in a position to at least record an objection to our government's change of long-standing policy when it came to the use of torture against enemies captured in the war on terror. It is unlikely that such an objection would have prevailed, given the Machiavellian currents then making their way through the White House and Pentagon, but the President's official lawyer could have been and should have been as brave as some of the lower-level staff attorneys within the Defense Department who rightfully saw how far afield their superiors were going in changing basic fundamental tenets of law and policy.
On Tuesday, I asked Berlow, who does not cover Gonzales on a regular basis, whether he sees any connection between the Gonzales he studied in Texas and the one he sees now as Attorney General. He told me: "His priority has always been to do his boss's bidding." Berlow also told me that Gonzales' pre-Justice record shows a cavalier pattern of carelessly justifying policy decisions. "The administration has an attitude of "anything goes" and "we will find a rationale to justify what it is we want to do--if we are caught," Berlow told me. "What was astonishing in Texas is that they got away with it."
The Texas clemency memos, the Vienna Convention posture, and the infamous torture memo, suggest one of two things about Gonzales' career before he became Attorney General. If you are willing to give Gonzales the benefit of the doubt, and free him from any accusation of willfulness, then he appears to be a incompetent attorney who was not thorough enough to give his clients the best and most complete factual and legal analyses. If that's the case, the President had no business making him the nation's top attorney when there were and are so many other qualified candidates. If that's the case, the dreaded "crony" label fits Gonzales like so many of his red ties. Another "yes" man. Another subservient team player in a position where an independent thinker was needed.
If, on the other hand, you are not so forgiving of Gonzales, and you see in the clemency memos and Vienna Convention stance and torture memo a pattern of purposefully uncritical analysis and judgment, then history's verdict against the Attorney General is even worse. His memos about Texas' death row inmates allowed his boss to do what he wanted to do--ensure the execution of capital defendants -- even though the law required a much more thorough review. His subsequent memo about torture from the White House counsel's office helped allow the military to treat prisoners the way it wanted to -- even though the law fairly said otherwise. It is no wonder that Sen. Leahy was worried back in January 2005 that Gonzales would not have the moxie to say no when he needed to.
"Sycophant" is just one of many uncomplimentary but pointed words used by my sources for this series to describe Gonzales' work and attitude toward his role as counselor. For now, until tomorrow, let's leave it to former White House counsel John Dean, who knows a great deal about the way the Justice Department should be run, or not run, to sum up Gonzales' qualifications before he took over as Attorney General. Dean told me in an email earlier this week: "Frankly, I have a degree of sympathy for Alberto Gonzales, who I suspect is a terrific Texas real estate attorney."
This is the second in a four-part series about Alberto Gonzales and the role of Attorney General of the United States. Part I of the series looked at the history and tradition surrounding the job as the nation's top lawyer. This Part looks at Gonzales' relevant professional career before he became the 80th Attorney General in our nation's history. Part III looks at his record so far in office. And Part IV will look at choices for his successor.
By Andrew Cohen |
March 14, 2007; 10:06 AM ET
Previous: Part I: Alberto Gonzales: A Willing Accessory at Justice | Next: Part III: Alberto Gonzales: The "Empty Suit" AG
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