IT'S NOT JUST SQUISHY LIBERALS and ACLU lawyers anymore who cast a wary eye toward the future of our civil liberties. Just as the White House last week was announcing the replacement of Attorney General John Ashcroft by Alberto Gonzales, I was having lunch with the former Republican attorney general of New Jersey, John Farmer Jr., who most recently served as author of the 9/11 commission report.
"Its not much of a change," Farmer said flatly, referring to Gonzales nomination. "Its one thing to agree that a paradigm shift is necessary," he said, referring to the expanded federal police powers granted after the Twin Towers attack. "But its quite another to get it right."
And any chance of getting it right, Farmer said, was blown when the Bush administration went right over the heads of the courts and started inventing categories like "enemy combatants" that neat little pigeonhole in which all civil liberties disappear.
We have Alberto Gonzales to thank in part for that. This young Latino lawyer and Bush confidant has a compelling personal story of overcoming poverty and racial discrimination that is overshadowed only by his willingness to deprive others of basic human rights.
Not only did Gonzales play a key role in fashioning the enemy-combatant conceit that allows for indefinite and unreviewed detention, but he also laid down the legal foundation to create the kangaroo-court "military commissions" authorized by Bush to try suspected terrorists. Then there was that January 25, 2002, memo he typed up for longtime buddy Bush in which he called the protections of the Geneva Convention "quaint" and said there was no need, then, to apply international law to prisoners seized in Afghanistan. A half-year later, Gonzales was busy again, working on the now-infamous "torture memo" assuring the commander in chief that there was nothing cruel or unusual about sticking a prisoners face down in a tub of water or a jagged pole up his rear.
Touching, isnt it, coming from the man who will now be Americas top law-enforcement official? Perhaps the only redeeming aspect of Gonzales record is proof that affirmative action really works. No longer can we suppose that one race or another is genetically predisposed to do the right thing. When Gonzales served as counsel to thenTexas Governor Bush, he authored 57 memos on appeals for clemency from death row. Fifty-six wound up executed. Writing in Slate magazine, Phillip Carter said these memos "would have barely earned a passing grade in law school, let alone satisfy the requirements of a job in which life and death were at stake. Perhaps more important, these early memos from Texas revealed Gonzales startling willingness to sacrifice rigorous legal analysis to achieve pre-ordained policy results at the drop of a Stetson."
Much of Gonzales handiwork as a White House lawyer has, fortunately, not found such an easy glide path and is now being directly challenged in the courts he obviously disdains. Even the Rehnquist Supreme Court has begun to chisel away at the imperial powers Gonzales helped draft for the executive.
THE BIG QUESTION NOW IS how Gonzales Senate confirmation hearings will play out. Lets hope they will be as much of a riveting national soap opera as were the Clarence Thomas hearings. Not to dwell on Mr. Gonzales video-rental list. But this will be the first opportunity for America to publicly, and in detail, review and scrutinize the behind-the-scenes sausage making that has resulted in such rancid plates as Guantánamo and Abu Ghraib. Gonzales should be forced to answer in detail how his notorious memos were engineered, what precise role he played in their production, and what exactly were the outcomes being sought.
If and when he is confronted with such challenges, you can be sure that Gonzales and his own White House lawyers will cowardly retreat behind a stone wall, claiming all sorts of executive privilege and arguing that too much public debate will undermine national security, give aid and comfort to the enemy, and so on ad nauseam.
The bottom-line Bush-Gonzales answer will be: "Trust us."
But why should we? Since 9/11, this has been the universal refrain from the administration. As each new increment in police and investigative power has been ratcheted up, instead of enhancing judicial review, the latter has been further crippled. We are told to trust not in any process of review but instead in the righteousness that resides in the hearts of George W. Bush and his closest friends. A close-up look as to what actually constitutes the soul of these folks was chillingly put on display last week as John Ashcroft made his first public remarks after his resignation. As he spoke to the conservative Federalist Society convention, Ashcroft took a parting shot at the American legal system: "The danger I see here is that intrusive judicial oversight and second-guessing of presidential determinations in these critical areas can put at risk the very security of our nation in a time of war."
In other words: To hell with the law just trust us.
As Senate Democrats and some of their more maverick Republican colleagues privately ponder how "far they will go" in openly challenging this Bush toady in a time of war, let them remember that in terms of physical geography as well as by any moral measure, once you have decided to depart from the boundaries of Geneva, its but a very short trip to Nuremberg.
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