Wednesday, August 29, 2007

Alberto Gonzales did a great job

From a Feature Article defending Gonzales (all emphasis added):

With so little time left in his term, Mr. Bush needs above all an AG willing to explain and defend his policies on the vital and related areas of Presidential power and the war on terror. Mr. Gonzales was mostly a stalwart on the latter, going back to his years as White House Counsel. More recently, he has argued inside the Administration for the usefulness of Guantanamo against those at State and Defense who want to close it for reasons of public diplomacy. Mr. Gonzales understands that these detainees have to be kept somewhere, and that the criminal justice system is not up to the job of trying them.

His successor should be someone willing to engage critics on the Gitmo battle, as well as on fights over military tribunals and wiretaps of foreign terrorists. He should also be someone who understands that even a weakened President needs to act as if he's strong. That is, even a "lame duck" President still retains his powers under the Constitution and will be more effective if he's willing to use them.

Remarkable in the above is how little it has to do with the duties of the Attorney General. The text above and the piece as a whole betrays just how political the Bush Administration appointments are -- job qualifications and performance are literally not considerations. Conspicuously missing is any mention of giving sound legal advice and acting in accordance with the law other than the vague reference to the "powers under the Constitution", a Bush Administration favorite justification for any and all executive actions including those expressly illegal and unconstitutional.

It sadly does not go without saying that the role of the Attorney General is not to defend the President and his policies. It certainly isn't to claim that US laws, FISA and criminal justice-related, are "not up to the job" and should therefore be violated.

Gonzales wrote blank checks to the administration that he knew were invalid; most of his "legal" arguments were presented in briefs and press releases but tellingly not in court. The legal theories he used to justify administration actions were pure public relations fodder. He argued that the right to Habeas Corpus did not exist, but not in a legal setting, backing away from a definitive showdown in court that would have almost certainly ruled against that position. He argued that the President had the right to violate FISA laws, but when push came to shove (read: a Democratic Congress was elected) the TSP program was altered and submitted to the FISA court.

As a long-time Bush defender he had what appeared to be a sharp conflict of interest but there was no conflict -- his interest was solely in hunting everywhere for ways to justify Bush policies, including in John Ashcroft's hospital bed. In the minds of many Bush supporters that is the goal of the Attorney General, and more generally of all appointees to all positions. The distinction between political and non-political appointees is meaningless to them. All appointees are merely "emanations of a president's will" with "no substantial authority independent of President Bush."

The WSJ claims that he was "dragged through the mud for political reasons" and that he was not a "hyper-partisan political actor." Odd given that their qualifications for a good Attorney General and their praise for Gonzales are all overtly political in nature. Alberto Gonzales did a great job -- at defending the President. That isn't the job he was supposed to do, but that's the job the WSJ opinion page wanted him to do, and they are hardly alone on that. Just as Libby did a heckuva job by covering for the exposure of a CIA operative and front organization, as Michael Brown did heading FEMA while ignoring Katrina problems. The question is not "did he do a good job" but "what job did he even do?"

That some people think the Attorney General should operate as a political flack is hardly surprising. What is surprising is how openly they trumpet these views, views that are antithetical to a working government with functional checks and balances. The state of our discourse is such that writing about how "the rule of law must yield to the need for [ill-defined] energy" is perfectly acceptable. Condoning the torture of children by crushing their testicles is morally and legally valid. The window of discussion is moved only when such opinions are made public and eventually normalized. Outing a CIA operative is merely political gamesmanship; an Attorney General that subverts the law is not only proper but necessary in the battle against evil. Regardless of the merit of these positions their constant crowing deafens us to serious abuses.

That Gonzales eventually resigned is no great win for the rule of law. What happens next is critical - we will get someone who does a great job, or someone who does a great job at the job? The job defined not by the WSJ opinion writers but by the official role of the Attorney General to work in service of law and office.

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