Beinhart's Body Politic

Ah, Alberto Gonzales

About a year from now pundits and instant historians will point back at the firing of the federal prosecutors and say, “That’s where the impeachment began.”

I’m glad that it began with, or at least around, Alberto.

The attorney general takes an oath to uphold the constitution and execute the law. When controversial matters come up, his role, traditionally, is often to be the guy who says, “We can’t do that, it’s against the law.”

Gonzales took a different approach. He brought the ethics of a corporate lawyer to his office. He took it to be his job to find, or invent, a theory that would allow the administration to go forward. If the theory wouldn’t hold up in court, or made little sense, that didn’t matter. They could still maintain, with straight faces, that they believed that what they were doing, on the advice of the attorney general, was legal and constitutional. If worst came to worst, they’d back off and move on, so long as the profit outweighed the penalty.

The most flagrant example is when Bush, Cheney, and Rumsfeld decided they wanted to torture people.

Aside from the moral, practical, and traditional problems with torture, there were legal problems. America’s own War Crimes Act and the Geneva Conventions prohibit torture, torture lite, and even real life re-enactments of episodes from the TV show “24.”

So Gonzales and his legal team came up with the theory that the Geneva Conventions don’t apply to opponents in the War on Terror. Neither does domestic law. Indeed, nothing applies. They invented a category of person who has no rights. Even if they’re an American citizen. Gonzales knew exactly how illegal it was. That’s why he wrote a memo that explained, explicitly, that the reason to employ his theory was to “provide a solid defense to any future prosecution.”

The administration also wanted to snatch people off the street—usually abroad, but here too—and not bother with all the legal mumbo jumbo. Annoying. Cumbersome. Too expensive.

Unfortunately, Article 1, Section 9 of the Constitution says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Habeas corpus means that if you are arrested or detained, the government has to bring you into the legal system and say why. Without that right, you don’t have any other legal rights. You can’t defend yourself, you can’t call a lawyer, you can’t notify your family. You just disappear.

Gonzales came up with the astonishing theory that the Constitution doesn’t give people the automatic right to habeas corpus, it only says that if they happen to have it, it can’t be taken away.

Gonzales was also the architect of the legal theory that “permits”’ the NSA—and now we know, the FBI, and probably other agencies yet to be discovered—to spy on US citizens without warrants.

The Justice Department’s own Office of Professional Responsibility began an investigation of the NSA wiretaps without warrants program in January. Gonzales learned he would be a likely subject of the investigation. He subsequently advised President Bush to deny security clearances to the investigators, which Bush then did, effectively halting the probe.

But all that's not the reason I'm so happy it's Alberto.