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.

“It’s not much of a change,” Farmer said flatly, referring
to Gonzales’ nomination. “It’s 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 it’s quite another to get it

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 prisoner’s face down in a tub of water or a jagged pole up his rear.

Touching, isn’t it, coming from the man who will now be America’s
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 then–Texas 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. Let’s 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, it’s but a very short trip to Nuremberg.

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