Focusing on torture as the main objection to Alberto Gonzales’ taking over as Attorney General distracts us from his greater sin: his attempt to give the president the power to imprison Americans incommunicado and indefinitely, without recourse to courts or lawyers. Such contempt for our civil rights shows that Gonzales cannot be trusted to protect them.
The White House, with Gonzales as legal adviser, argued for this unchecked and arbitrary power in two cases, all the way up to the US Supreme Court. Those cases concerned Yaser Hamdi and Jose Padilla, Americans whom President Bush suspected were "enemy combatants" and threw into military prisons. Both men had no way to question the grave accusations against them.
Fortunately, the Supreme Court rejected the Administration’s claim to such power last June and ordered that Hamdi be given a hearing (it avoided that issue in Padilla’s case based on procedural grounds). When the government was required to prove its case against Hamdi, it released him instead, revealing that it had lacked any legitimate basis for locking him away for over two years. (Despite its lack of evidence, the government forced him to renounce his US citizenship and deported him to Saudi Arabia.)
What happened to Hamdi is outrageous. But the greater outrage is that the Administration ever argued for such power in the first place. The safeguards that the president tried to strip from us are part of the fundamental "due process" of law that our Constitution requires before the government can take our life, liberty or property. Due process is not a privilege to be given or removed at the government’s behest, but a right that belongs to the citizenry, part of the bargain for delegating our powers to our government.
Due process is crucial for two reasons. First, access to the courts can correct mistakes. Even before 9/11, people were often arrested in error. Now that police are focusing on preventing terrorism, the risk of error has increased. Normal behavior is more likely to seem suspicious. It’s also easy to imagine how a person’s enemies, or someone seeking a reward or a plea deal, might bear false witness. Courts can ferret out such problems.
Second, giving prisoners access to courts protects against government’s abuse of power. A government that can, on its own say-so, arrest and imprison a person is dangerous. Such power chills the dissent and debate and free thought that democracies demand. It also wrecks lives.
This was the view of our Founding Fathers, as Gonzales must have learned even before law school. Arguments that the so-called War on Terror calls for rejecting this view are specious.
Gonzales’ supporters argue that the president "needs" the power to arrest people he believes are plotting terrorist attacks, even if he lacks evidence that would satisfy a court. But how can anyone know that someone is a threat, without subjecting facts to rational proof? Without such rigor, people will be seized and jailed based on mere guesswork.
Moreover, our law already provides ample ways to thwart people planning to commit crimes. Evidence that a person has taken steps to commit murder can convict him for "attempted murder." Evidence that a person has agreed with another person to commit a crime can convict him for "conspiracy."
Gonzales’ supporters also argue that holding a prisoner without access to an attorney can make him more susceptible to interrogation, which can yield information that might stop a terrorist attack. But what if someone is arrested by mistake and knows nothing? It’s unlikely that the government — so sure of its decision to arrest him — would release him. Instead, the government might torture him, perhaps for years, until he "confesses." This nightmare is not farfetched, given Gonzales’ support for torture.
At bottom, the Bush Administration, advised by Gonzales, has claimed the power to arrest and imprison innocent people. No one should have such power. To seek it is anti-democratic and anti-American. That alone is reason for the Senate to reject him.
BRIAN J. FOLEY is a professor at Florida Coastal School of Law. He can be reached at email@example.com.