Alberto Gonzales' Misplaced Loyalties

Jacob Sullum
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Posted: Aug 29, 2007 12:01 AM
Alberto Gonzales' Misplaced Loyalties

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.

That same year, The New York Times revealed that the National Security Agency had been monitoring the international communications of people in the U.S. without the warrants required by the Foreign Intelligence Surveillance Act. Gonzales, then the attorney general, defended the program by asserting the president's authority to do whatever he thinks is necessary to fight terrorism.

"The president has the inherent authority under the Constitution, as commander in chief, to engage in this kind of activity," Gonzales declared. He added that the administration had not bothered to ask Congress to approve the program because Congress might have said no. (This month Congress said yes, passing the Protect America Act by a sizable margin.)

Gonzales also defended the president's "inherent authority, as commander in chief," to arrest American citizens in the U.S. and detain them indefinitely as suspected terrorists -- in effect, to lock up anyone at will and throw away the key. But Gonzales was not eager to test this jaw-dropping assertion of power in the Supreme Court. After accused terrorist Jose Padilla was transferred from military to civilian custody in 2005, Gonzales argued that the issue was moot.

By eagerly defending the president's unilateralism, Gonzales showed his loyalty to the man who made his career in public service possible. At the same time, he showed his disloyalty to the principles that give us a government of laws and not of men.