Bush’s Kingmaker

AP/Wideworld

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.

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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