Jacob Sullum

In March 2004, when Alberto Gonzales visited John Ashcroft in the hospital, where he was recovering from emergency gallbladder surgery, he did not bring flowers or balloons; he brought an argument.

Gonzales, then the White House counsel, wanted Ashcroft, then the attorney general, to approve a surveillance program that Deputy Attorney General James Comey, who was running the Justice Department in Ashcroft's absence, believed was illegal. Ashcroft refused.

Ashcroft, who a few years before had slammed critics of the PATRIOT Act for trying to "scare peace-loving people with phantoms of lost liberty," was not known as a staunch defender of privacy rights. But at that moment, he demonstrated an awareness of something Gonzales never seemed to understand, even after he succeeded Ashcroft as the nation's top law enforcement official: He had a duty not just to represent the president's interests but to uphold the rule of law.

Looking back at Gonzales' years in Washington as he leaves the Justice Department, we see no examples of the integrity and independence that a groggy Ashcroft displayed in that hospital room. Instead we see a consistent pattern of doggedly pushing the expansion of presidential power, without regard to what Congress, the courts or the Constitution might have to say on the subject.

After the Sept. 11 attacks, Gonzales drafted the presidential order approving the trial of suspected terrorists by newfangled "military commissions" that were distinct not only from ordinary criminal courts but from tribunals governed by the Uniform Code of Military Justice. Last year, after the Supreme Court ruled that the commissions were illegal, the Bush administration finally asked Congress to authorize them, which it did with the Military Commissions Act of 2006.

Although six years have passed since President Bush first sought to establish the commissions, which supposedly were needed so urgently that there was no time to consult with Congress, the Defense Department has not completed a single trial. One accused terrorist has pleaded guilty, and two other cases are stalled because of defects in the reviews used to determine whether the prisoners were eligible for trial.

As White House counsel, Gonzales also went along with a legal interpretation that said coercive interrogation tactics amounted to torture only if they caused suffering "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." The Bush administration later repudiated that interpretation, and Congress reaffirmed the legal restrictions on interrogation techniques in the Detainee Treatment Act of 2005.

Jacob Sullum

Jacob Sullum is a senior editor at Reason magazine and a contributing columnist on Townhall.com.
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