Gonzo Justice

As Democratic and Republican leaders alike pile on to demand Alberto Gonzales’ resignation, only George W. Bush is singing his praises. Deputy press secretary Dana Perino said Bush was happy with Gonzales’ testimony. “The attorney general continues to have the president’s full confidence,” she said.

It’s not surprising that Bush would be pleased. Like a good soldier, Gonzales, who claimed a faulty memory 70 times, was careful not to incriminate his bosses.

Bush and Cheney hired Gonzales as attorney general to carry out their plan to amass governmental power in the hands of the Executive. They knew they could count on him.

Gonzales’ bona fides were well-known to his bosses. When he was counsel to Texas Governor George W. Bush from 1995 to 1997, Gonzales provided his boss with “scant summaries” on capital punishment cases that “repeatedly failed to apprise the governor of crucial issues: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence,” according to the Atlantic Monthly.

Gonzales prepared 57 such summaries, including one regarding the case of Terry Washington, a mentally retarded man executed for murdering a restaurant manager. The jury was never told about his mental condition. Gonzales’s three-page summary of the case for Bush mentioned only that Washington’s defense counsel’s 30-page plea for clemency (which covered the mental competency issue) was rejected by the Texas parole board. Bush refused to stay executions in 56 of the 57 cases in which Gonzales wrote abbreviated memos.

The attorney general was central to the Bush-Cheney-Yoo illegal domestic surveillance program. When he testified before the Senate Judiciary Committee after the New York Times uncovered the secret spying program, attorney general Gonzales walked in lockstep with his bosses. Gonzales would not tell the senators whether Bush had authorized other secret programs. He refused to say whether the government could wiretap purely domestic calls without a warrant, or whether he had the authority to search the first class mail of American citizens or to examine people’s medical records. When Republican Senator John Cornyn asked him whether law enforcement could shoot down a plane with drugs, Gonzales said, “I’d have to think about that.”

At Gonzales’ confirmation hearing for attorney general, he said he wasn’t sure whether torturing prisoners could be lawful. The former Texas Supreme Court justice surely knew the terms of the Convention Against Torture, a treaty ratified by the United States and therefore part of the supreme law of the land under the Supremacy Clause of the Constitution. The convention says, “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability, or any other public emergency, may be invoked as a justification for torture.”

Yet, as White House counsel, Gonzales had advised Bush that the Geneva Conventions, which mandate humane treatment for all captives, were “quant” and “obsolete.” Gonzales’ advice facilitated the torture of prisoners in Afghanistan, Iraq, Guantánamo and secret CIA prisons around the world. Gonzales had evidently done his homework. The Nazi lawyers at Nuremberg also advised their clients that the Geneva Conventions were “quaint” and “obsolete.”

Gonzales’ confirmation testimony led the New York Times to opine, “Mr. Bush had made the wrong choice when he rewarded Mr. Gonzales for his loyalty,” and the Washington Post to say, “The message Mr. Gonzales left with senators was unmistakable: As attorney general, he will seek no change in practices that have led to the torture and killing of scores of detainees and to the blackening of U.S. moral authority around the world.” The Post concluded, “Those senators who are able to reach clear conclusions about torture and whether the United States should engage in it have reason for grave reservations about Mr. Gonzales.”

In 2005, Bush said, “Al Gonzales is a great friend of mine. I’m the kind of person, when a friend gets attacked, I don’t like it.” Eventually, however, Bush will have to unload Gonzales the way he unloaded his friend Donald Rumsfeld. Loyal Republican senators trying to paint Gonzales as incompetent don’t want the finger to point higher to the real culprits–Karl Rove, George W. Bush and Dick Cheney.

MARJORIE COHN is a professor at Thomas Jefferson School of Law, president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists. Her new book, Cowboy Republic: Six Ways the Bush Gang Has Defied the Law, will be published in July. See http://www.marjoriecohn.com/.


Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and former president of the National Lawyers Guild. She writes, speaks and does media about human rights and U.S. foreign policy. Her most recent book is “Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.” Visit her website at http://marjoriecohn.com/ and follow her on Twitter at @marjoriecohn.