Bush’s Kingmaker

Does the fellow picked by George W. Bush to be the country’s top law enforcer believe the president is above the law?

Toward the end of the confirmation hearing of Alberto Gonzales, Bush’s choice to replace John Ashcroft as attorney general, a rather telling exchange occurred. Senator Russell Feingold, a Wisconsin Democrat, was asking Gonzales about the infamous August 1, 2002, "torture memo." The memorandum, prepared at Gonzales’ request by the Justice Department’s Office of Legal Counsel, is best known for concluding that acts count as torture only if they are "extreme" and cause pain "equivalent in intensity" to the pain that accompanies "organ failure, impairment of bodily function, or even death." The memo, revealed by the Washington Post last June, showed that the Bush administration was trying to sidestep a 1994 federal anti-torture law (which defines torture as an act "specifically intended to inflict severe physical or mental pain") and to justify the use of "cruel, inhuman, or degrading" interrogation techniques that produce a certain level of pain.

Also in this issue

To read about President Bush's appointment of Mike Chertoff to head the Department of Homeland Security, click here.

To read about President Bush's new chief domestic policy advisor, Claude Allen, click here.

But Feingold was not grilling Gonzales about the administration’s shifty definition of torture. Gonzales had gotten plenty of that from other Democrats, and he had ducked many of the difficult questions. Feingold was concerned with another section of the memo, one in which the administration claimed that during wartime a president could ignore laws that might affect his handling of the war. "In light of the President’s complete authority over the conduct of war," the memo said, ". . . we will not read a criminal statute as infringing on the President’s ultimate authority in these areas." In simple terms: A wartime president is above the law. The immediate point concerned the use of torture, and the argument was that if the commander in chief orders torture, it cannot be illegal. But this finding had a much greater sweep. Suppose Congress banned the use of biological weapons or acts of genocide. Under this interpretation, the president could shoot Capitol Hill the finger and do as he pleases.

"The question here," Feingold asked Gonzales, "is, what is your view regarding the president’s constitutional authority to authorize violations of the criminal law . . . when acting as commander in chief? Does he have such authority?" For instance, Feingold wondered, could Bush "authorize warrantless searches of Americans’ homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?" That is, could Bush act as a king?

Gonzales responded predictably. He noted that the "torture memo" had been "withdrawn" by the Justice Department and "rejected by the executive branch." True, the Bush administration had replaced this embarrassment with a new memo the previous week, just in time for Gonzales’ appearance before the Senate Judiciary Committee. The new memo countermanded the previous definition of torture, but it did not address whether Bush could ignore laws when fighting a war. So Feingold pressed Gonzales further: Does Bush "at least in theory have the authority to authorize violations of the criminal law . . . simply because he’s commander in chief?"

Gonzales did not say no. "It is," he replied, "impossible to me . . . to answer that question." Why was it impossible? Gonzales did not explain. He did note that "To the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with." Feingold responded, "Well, that sounds to me like the president still remains above the law." Gonzales rejected that interpretation, commenting that "The president is not above the law." But he had just said that the president could decide to ignore the law. Gonzales then added, "It is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." Boiled down, his twist-and-turn answer seemed to be this: Bush is free to violate laws when performing his commander-in-chief duties, Bush would consider such a move "significant" (no shit), and Bush has no intention to exploit this power on a regular basis.

How reassuring is that? It sounded as if Bush and Gonzales do believe he could be king for a day every now and then. By now, Feingold was running out of time, and this critical point was not explored much further. That’s what often happens with congressional hearings; the important stuff is shortchanged. Besides, the Democrats were not aiming to defeat the Gonzales nomination. Few Democratic senators were eager to vote against the first American of Latino origin to be picked for the A.G. slot — especially when it appeared inevitable that the GOP-dominated Senate would green-light the nomination. The goal was merely to rough him up, perhaps to signal that Gonzales would face a difficult time should Bush nominate him to fill a Supreme Court opening.

At the hearing, Gonzales dodged a serious charge: that he ordered the original "torture memo" drawn up to create a loophole that would allow CIA officers to use torture or cruel procedures and not fear criminal prosecution. According to the Washington Post, the drafting of the "torture memo" began after the CIA asked Gonzales how much pain and suffering intelligence officers operating abroad could inflict upon detainees without violating the anti-torture law. Gonzales claimed he had "no specific recollection" of this. And his careful testimony suggested that even though the administration deep-sixed the "torture memo," it still is trying to provide the CIA legal cover for employing extreme and abusive interrogation techniques. While testifying, Gonzales was careful to distinguish between restrictions placed on military interrogators and those applied to intelligence-service interrogators, stating that the military — not the CIA — would treat detainees "humanely." Why the distinction? When Senator Arlen Specter, the Republican chairman of the Judiciary Committee, asked whether the CIA has "broader latitude" than the military when conducting interrogations abroad, Gonzales did not directly reply, and he accepted Specter’s invitation to respond later in writing. A persuasive review of the two memos and Gonzales’ testimony written by Marty Lederman, a former Office of Legal Counsel attorney (who did not work on the memos), concludes that Gonzales has helped shape a policy under which the CIA "is not bound by any standard of ‘humane treatment’ " and "may lawfully engage in cruel, inhuman and degrading treatment" when questioning al Qaeda suspects overseas. (Lederman’s full analysis was posted at www.balkin.blogspot.com.)

So while Bush and Gonzales, post–Abu Ghraib, now claim they oppose using torture or abuse, Gonzales — who would monarchize Bush for national-security purposes — plays cute with details and definitions, presumably to permit the continuing use of questionable interrogation techniques. This is quite unbecoming for a former judge slated to be the nation’s number-one lawman.


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