By Ryan McGreal
Published August 31, 2007
Democrats are painting the announced resignation of US Attorney General Alberto Gonzales as an affirmation of their approach to the Bush administration in light of criticism that they're not forceful enough.
Gonzales' resignation is certainly welcome, but it does not go nearly far enough toward restoring the rule of law to US domestic politics.
All the evidence indicates that Gonzales is guilty of very serious crimes.
Gonzales authorized the dismissal of several US Attorneys who has positive job performance reviews but were insufficiently loyal to the Republican Party or who undertook investigations that damaged the Party's image, and replace them with what Kyle Samson, Gonzales' chief of staff, called "loyal Bushies".
When called to testify to the US Congress, Gonzales denied specific knowledge of the details of the dismissals, denied active involvement in the decisions, and denied recalling any details that might help the investigating committee discover what had actually happened. (During his, er, memorable appearance on April 19, 2007, Gonzales used a variant of the phrase, "I don't recall" 64 times.)
However, internal documents indicate that he was directly involved in at least some of the firings.
This debacle already demonstrates a level of criminal cronyism that goes far beyond the normal workings of the US partisan system. However, Gonzales' crimes go far beyond obstruction of justice.
As President Bush's Legal Counsel, Gonzales crafted a memo for the President that offered a justification for ignoring the Geneva Convention, allowing the US to deny identified "unlawful enemy combatants" the basic rights due to prisoners of war and justifying the use of torture.
The memo reads in part:
In my judgment, this new paradigm [the "war against terrorism"] renders obsolete Geneva's strict limitations on questioning the enemy prisoners and renders quaint some of its provisions ...
Although some of these provisions do not apply to detainees who are not POWs [prisoners of war], a determination that GPW [the Geneva Convention on Prisoners of War] does not apply to al Qaeda and the Taliban eliminates any argument requiring the need for case-by-case determinations of POW status. It also holds open options for the future conflicts in which it may be more difficult to determine whether an enemy force as a whole meets the standard for POW status. [emphasis added]
In other words, Gonzales argued that the US is not bound by the Geneva Convention on Prisoners of War. However, Article VI, Clause 2 of the Constitution reads:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
By allowing torture and denial of habeas corpus (the right not to be detained without being charged with a crime and tried in an a court of justice) in contravention of the Geneva Convention, a treaty to which the US is a party, the Bush administration - with Gonzales' help - has violated the Constitution they swore an oath to support.
The Bush administration authorized the US National Security Agency (NSA) to initiate a widespread, secret program of wiretapping domestic phone calls without a warrant, in direct violation of the Foreign Intelligence Surveillance Act.
Previous Attorney General John Ashcroft had taken ill, and his deputy, James Comey, refused to sign off on the illegal progam. Gonzales and former White House Chief of Staff Andrew Card visited Ashcroft in his hospital room and tried to pressure him into overruling Comey. Ashcroft refused.
On later questioning, Gonzales denied that the visit was about the wiretapping program, but the testimonies of the other involved parties contradicted Gonzales' account. Senator Patrick Leahy has announced that Gonzales will be subpoenad again in connection to the program and his role in it.
In what may be the most weasel-worded argument in a career characterized by such arguments, Gonzales attempted to argue that the US Constitution does not guarantee habeas corpus.
Article I, Section 9, Clause 2 of the US Constitution reads, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
On January 8, 2007, Gonzales was being questioned by Arlen Specter, a Republican member of the Senate Judiciary Committee, by arguing that this does not guarantee habeas corpus. As he tried to explain: "The fact that the Constitution - again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away."
When Specter interjected that the Constitution stating habeas corpus can't be taken away means by definition that it is granted, Gonzales demurred again.
I meant by that comment, the Constitution doesn't say, "Every individual in the United States or every citizen is hereby granted or assured the right to habeas." It doesn't say that. It simply says the right of habeas corpus shall not be suspended except by -
Spector interrupted him again, saying, "You may be treading on your interdiction and violating common sense, Mr. Attorney General." By this point, almost no one, even in his own party, still believed Gonzales had any credibility.
Still, that didn't stop the President from insisting that Gonzales was the victim of "months of unfair treatment" and that he had been forced out "for political reasons."
Throughout his close and cozy relationship with George W. Bush dating back to his job as legal counsel when Bush was the Governor of Texas, Gonzales has always demonstrated that his loyalty was to the man, not to the law.
He has perjured himself repeatedly, obstructed justice, and authorized torture, the denial of habeas corpus and warrantless surveillance of Americans. His resignation is only the beginning: Gonzales needs to stand trial for his crimes.
If the US is to re-establish itself as a nation governed by the rule of law, the US government must find the courage to hold accountable those high officials who have held the rule of law in total contempt for the past six years.
If it does not do this, the lesson that Americans - and future government officials - will learn is that the people running the country aren't accountable to the law, to the Constitution or to their electors.
Now the big question is: after they were given a majority to stop the Bush administration and bring accountability to the law back into government, how much credibility will the Democrats have if they don't go after every appointee of Bush who appears to have broken the law?
Gonzales was the Attorney General: the very top of a pyramid of people whose job it is to enforce the law. He's performed his job so cynically, so criminally, so appallingly (note I don't use the word "incompetently" - everything he has done has been a deliberate and calculated move in this administration's plan) that he makes John "Let the Eagle Soar" Ashcroft look like a model of professionalism and statesmanship by comparison.
The Democrats and independents (and even some Republicans) who elected the Democratic Party to a majority in both Houses of Congress did so for one reason: to start cleaning up the Bush administration's mess. Salon's Glenn Greenwald does an excellent job of explaining what this means for the Democrats who seem more concerne with tactics than principle:
Since Democrats took over Congress in January, there have been three major attributes characterizing their conduct: (1) a failure to stop or restrict the war in Iraq; (2) a general failure/unwillingness to stop Bush on much of anything else of significance (FISA, a failure to reverse any of the excesses of the GOP Congress, such as the Military Commissions Act, lack of limits on his ability to attack Iran, etc.); and (3) numerous investigations, sometimes flashly but thus far inconsequential. There is no rational way to argue that the numerous investigations (item (3)) are responsible for Congressional unpopularity given how overwhelmingly Americans want Congressional investigations of the administration.
Thus, the only rational conclusion is that Congress is so unpopular, particularly among Democrats, because of their ongoing capitulations to the Bush administration, their failure to place any limits on his Iraq policy, and their general inability/refusal to serve as a meaningful check on the administration. Democrats and independents overwhelmingly dislike the President. Thus, the weaker Congress is in defying the President, the more unpopular Congress becomes.
There's a hard core of somewhere between 20 and 30 percent of Americans who would support the Republicans even if they bit the heads off live babies. The rest of the country hates the Bush administration and its Congressional enablers, and voted for the Democrats because they promised to stop Bush in his tracks. Those people - the 70 percent who disagree with Bush and his policies - are angry with the Democrats for not keeping that promise so far.
It's a sad irony that people accuse Dennis Kucinich and other impeachment supporters of playing politics. They're just trying to uphold the Constitution. The people who oppose impeachment on tactical grounds - the Nancy Pelosis and Barack Obamas - are actually the ones playing politics, because they've abandoned their pledge to the Constitution out of fear that it will hurt their electoral chances in 2008.
The really sad thing, as Glen Greenwald recently argued, is that failing to enforce the law WRT the Bush administration is turning out to be a tactical disaster. After they were given a majority to stop the Bush administration and bring accountability to the law back into government, how much credibility will the Democrats have if they don't follow the Constitution and impeach high officials who appear to have broken the law?
With Gonzales out, there's a chance - albeit a slim one - that the Democrats can force Bush to appoint an independent Attorney General who will actually do his or her job and investigate the alleged crimes of the Bush administration's officials. At the very least, they can refuse to rubber-stamp the next loyal crony Bush tries to appoint.
If they roll over dead on this as well, e.g. by approving some craven sycophant like Michael Chertoff, they will squander the last of the goodwill voters gave them when they promised to clean up the government. Also, they will once again abandon their pledges to uphold the Constitution.