By Cole, David
The Nation , Vol. 279, No. 19
Cabinet nominees are not known for going out on a limb. So when White House counsel Alberto Gonzales intoned at the press conference announcing his nomination to be Attorney General that "the American people expect and deserve a Department of Justice guided by the rule of law," observers could be forgiven for suppressing a yawn. Except that in this day and age, a Justice Department guided by the rule of law is a positively revolutionary concept. Under the leadership of John Ashcroft, the department has spent the past three years treating the rule of law as at best an inconvenient obstacle, at worst a source of nitpicking that "only aids terrorists."
So, restoring the rule of law to the halls of Justice would be a great idea. But is Alberto Gonzales really the man to do it? A review of his record suggests that he has not shown any particular fealty to the rule of law, and has, in fact, been at the forefront of Administration efforts to subvert it.
Start with the fact that in the internal Administration debates over how to try terrorists--which as White House counsel he coordinated--Gonzales makes Ashcroft look like a voice of reason. According to a detailed behind-the-scenes account by Tim Golden for the New York Times, Ashcroft advocated trying terrorists in the criminal justice system and warned that the procedures for military tribunals would be seen as "draconian." Gonzales sided with the extremists. He urged military tribunals, disfavored any civilian participation and even opposed giving defendants a presumption of innocence. Those views prompted objections within the Administration, from military and State Department lawyers, Secretary of State Colin Powell, even National Security Adviser Condoleezza Rice. Gonzales's response? He reportedly kept them out of the loop, leaving the real decision-making to an inner core of Federalist Society conservatives.
In January 2002 Gonzales wrote a memo to the President arguing that Geneva Convention protections should not extend to the prisoners at Guantanamo. Gonzales wrote that in the war on terror, the Geneva Conventions are "obsolete" and "quaint" and would impede the interrogation of enemy combatants. It is only a few short steps down the slippery slope from that view to the torture US agents have inflicted on detainees in Iraq, Guantanamo and elsewhere.
One giant step down that slope may have been the infamous "torture memo" of August 1, 2002. Gonzales didn't write this one--it was drafted by the Justice Department's Office of Legal Counsel--but he's the only person on the "To" line, which means he must have requested it. Its clear intent is to evade the mandates of federal criminal law and international treaties banning torture. …