President's Yes man is a Killer

[Moses]

It will be an atrocity if the Democratic Party does not oppose this nomination, one and all:

washingtonpost.com

The President's Yes Man

By Alan Berlow

Sunday, November 21, 2004; Page B07

In nominating Alberto Gonzales to be the next attorney general, President Bush has selected a man with a long record of giving him the kind of legal advice he wants. Unfortunately, that advice has not always been of the highest professional or ethical caliber.
Gonzales is perhaps best known for a controversial January 2002 memorandum to the president in which he argued that Geneva Convention proscriptions on torture did not apply to Taliban and al Qaeda prisoners, and that the conventions are, in fact, "obsolete."
This interpretation of international law, which many have linked to the abuses at the Abu Ghraib prison, will no doubt be a focus of confirmation hearings. Senators might also want to quiz Gonzales about a less well-known June 1997 memo involving another treaty, the Vienna Convention on Consular Relations. Written when Gonzales was counsel to then-Gov. George W. Bush, the memo puts forward the novel view that because the state of Texas was not a signatory to the Vienna Convention, it need not abide by the treaty. Or, put another way, Texas is not bound by Article VI of the Constitution, which states that U.S. treaties are "the supreme Law of the Land."

That memo was written to dismiss State Department concerns about the impending execution of a Mexican national whose rights under the convention had clearly been violated by Texas police. And it is on the subject of executions that Gonzales's most questionable legal writings may be found.

Bush approved 152 executions during his six years as governor. For each of the first 57, he made his judgment based on a three- to seven-page "execution summary" prepared by Gonzales and on an oral briefing that typically lasted no more than 30 minutes that the chief counsel usually presented on the day of the execution. In nearly all these cases, Gonzales was the only person standing between the executioner and a governor who made it abundantly clear he had little or no interest in granting clemency.

Where some might view this as a terrifying and formidable responsibility, Gonzales's "confidential" memos suggest that he saw his role as more of an expediter of his boss's preordained conclusion. Far from presenting an evenhanded or nuanced discussion of the case for and against clemency, Gonzales's execution summaries display a consistent prosecutorial bias. Not once does he attach a clemency petition in which the condemned put forward his or her best case for a reprieve. And Gonzales's summaries repeatedly play down or fail to report the most important issues at hand: claims of ineffective counsel, conflicts of interest, mitigating evidence, evidence never presented to a jury, even evidence of innocence. Not surprisingly, a disinterested observer relying solely on Gonzales's memos would probably do exactly what Bush did: deny clemency in every single case.
Consider the case of Terry Washington. Gonzales's three-page summary misleadingly suggests that there was doubt about the central issue in Washington's plea for life: the fact that he was brain-damaged and mentally retarded. But the state of Texas did not dispute the fact that Washington was retarded. Gonzales doesn't inform Bush that Washington's incompetent attorney never called a mental health expert to testify, never advised the jury that his client was retarded, or that he had an IQ between 58 and 69 and had been beaten with whips, water hoses, extension cords, fan belts and wire hangers as a child. Nine hours after Gonzales's briefing, Washington was executed. The Supreme Court has since found executions of the mentally retarded to be cruel and unusual punishment.

In the case of David Wayne Stoker, there were enough red flags for a May Day parade, yet Gonzales spotted none of them. For starters, a federal appellate judge had concluded that the state's star witness was just as likely the murderer as Stoker. Gonzales's 18-sentence summary also failed to note that a key witness recanted after Stoker's conviction (explaining that he'd been pressured by the prosecution to present perjured testimony) and that the state's star witness received a financial reward for fingering Stoker, had felony drug and weapons charges dropped and therefore had an obvious motive for accusing Stoker. Gonzales also didn't tell Bush that this witness and two police witnesses lied under oath at trial, that the state's expert medical witness pleaded guilty to seven felonies involving falsified evidence and that the state's psychiatric witness, whose testimony was essential to securing a death sentence, never even interviewed Stoker. The psychiatrist had since been expelled from the American Psychiatric Association for repeatedly providing unethical testimony in murder cases.

Senators might want to know how none of this public information made it into Gonzales's report. And they might ask how Gonzales's office could be prescient enough, a full week before Gonzales wrote his summary and briefed the governor, to inform Stoker's attorney that there would be no grant of clemency.

One could, of course, argue that the client calls the shots, and that Gonzales delivered exactly what Bush wanted. But the 57 cases Gonzales summarized were all matters of life or death. They included people such as Stoker, who may have been innocent, and others such as Washington who had something less than a fair trial. Given the stakes, one must ask whether a fair-minded or ethical lawyer would simply do as he'd been told.

Alan Berlow is a Washington-based writer who often deals with death penalty issues. He adapted this column from a longer piece in Atlantic Monthly.

© 2004 The Washington Post Company

www.washingtonpost.com/ac2/wp-dyn/A64024-2004Nov19?language=printer

[Moses]

Cloud Over the Constitution
The Democrats on the Senate Judiciary Committee lack the grit to stop Alberto Gonzales
December 10th, 2004 6:30 PM

The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation's history. These claims put President George W. Bush literally above the law, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time, for any reason that Bush associates with national security . . . —Stuart Taylor Jr., former New York Times Supreme Court reporter, "America's Best Choice?," Legal Times, November 15, 2004

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In a scathing lead editorial (November 22), "Mr. Gonzales' Record," The Washington Post challenged the Senate Judiciary Committee, which will soon hold a confirmation hearing on the president's appointment of Alberto Gonzales to be this nation's chief law enforcement officer, the daily protector of the Constitution: "Above all, Mr. Gonzales should answer this question [before the Senate Judiciary Committee]: Why is a lawyer whose opinions have produced such disastrous results for his government—in their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courts—qualified to serve as attorney general?"

As I wrote in my last two columns, the editorial summarized some of the disastrous advice from this man without any law enforcement experience, who always tells George W. Bush what he wants to hear: authorization for torture of noncitizen detainees; approval of violations of international law; and the breathtaking assertion that the president, without going to the courts or to Congress, can imprison American citizens indefinitely, without charges, and without access to lawyers.

Actually, The Washington Post's challenge is to the Democrats on the Senate Judiciary Committee. The Republican members will vote, in lockstep, for Gonzales. But I have found out that most, if not all, of the Democrats will also cave in—after harrumphing at Gonzales for some hours.

I know this from an inside source whom I cannot name. I very rarely use blind sources, but there are times when to report on what's actually going on, I have to protect a source. The Democrats on the committee know what I, and others, have been telling you about Gonzales. In their possession, for instance, is a copy of the July/August 2003 Atlantic Monthly article by Alan Berlow that documents how Gonzales, as legal counsel to then Texas governor George W. Bush, sent 56 death row inmates to be executed after giving three-to-seven-page memos on their cases to Bush that rubber-stamped the lethal decision of the notoriously murderous Texas courts.

Even the Democrats' attack dog on the Judiciary Committee, Charles Schumer, has said he prefers Gonzales to John Ashcroft. That's like saying you prefer Torquemada to Attila the Hun. Indeed, the ranking minority member on the committee, Patrick Leahy, has said that with Bush re-elected, if he sent up Attila the Hun to replace Ashcroft, he'd get his way.

....As a result, for the next four years, the manipulative Alberto Gonzales will be finding additional ways to expand the Patriot Act, integrate the further surveillance of us all into government data banks, and, as he already has, make the Bush administration the most secretive in American history.

In a recent detailed summary of Gonzales's record as White House counsel, the Reporters Committee for Freedom of the Press (I'm on its steering committee) emphasized: "Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny."

So, as we are abandoned by the Democrats on the Judiciary Committee, what can we do? For one thing, keep in touch with the website of the Bill of Rights Defense Committee (bordc.org). It has a continuing record of cities and towns passing resolutions pressuring their members of Congress to pass liberating anti–Patriot Act (and future anti-Gonzales) legislation. (A number of such bills will be reintroduced in the next session of Congress.) And the website includes organizing strategies and useful news reports.

Also, while I have substantial differences with certain American Civil Liberties Union policies and with the quality of some of its top leadership, the ACLU staff is persistently effective in countering, through communication and lawsuits, the administration's subversion of the legacy of Samuel Adams, Thomas Jefferson, Eugene Debs, Bayard Rustin, and other freedom defenders.

The ACLU membership has increased in direct ratio to the ascendancy of Bush, Ashcroft, Rumsfeld, Gonzales, et al. And the more members it gets, the more it can accomplish. I suggest you join the ACLU (the national office is in New York: 125 Broad Street, 18th floor; Attention: membership department; NY, NY 10004; 212-549-2585).

Whenever I speak at a school, or at any gathering, I bring the late Supreme Court justice William O. Douglas into the conversation. As a defender of constitutional liberty, he was the direct opposite of Alberto Gonzales. The Constitution and the Bill of Rights, Douglas once wrote to a group of young lawyers, are not self-executing.

He warned: "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness."

The changes in the air have become much more than slight. The twilight is deepening, but so is the resistance—despite the retreat of the Democrats on the Senate Judiciary Committee. The fatuous Michael Moore will not save us. Only we can. All through our history, dissent and resistance have beaten back the darkness. Tom Paine and Martin Luther King knew that, and like Joe Hill, their lives still resonate.

[Moses]

December 16, 2004

Ex-Military Lawyers Object to Bush Cabinet Nominee

By NEIL A. LEWIS

WASHINGTON, Dec. 15 - Several former high-ranking military lawyers say they are discussing ways to oppose President Bush's nomination of Alberto R. Gonzales to be attorney general, asserting that Mr. Gonzales's supervision of legal memorandums that appeared to sanction harsh treatment of detainees, even torture, showed unsound legal judgment.

Hearings before the Senate Judiciary Committee on the nomination are expected to begin next month. While Mr. Gonzales is expected to be confirmed, objections from former generals and admirals would be a setback and an embarrassment for him and the White House.

Rear Adm. John D. Hutson, who served as the Navy's judge advocate general from 1997 to 2000 before he retired, said that while Mr. Gonzales might be a lawyer of some stature, "I think the role that he played in the one thing that I am familiar with is tremendously shortsighted."

Mr. Gonzales, as White House counsel, oversaw the drafting of several confidential legal memorandums that critics said sanctioned the torture of terrorism suspects in Afghanistan and Guantánamo Bay, Cuba, and opened the door to abuses at the Abu Ghraib prison in Iraq.

A memorandum prepared under Mr. Gonzales's supervision by a legal task force concluded that Mr. Bush was not bound either by an international treaty prohibiting torture or by a federal antitorture law because he had the authority as commander in chief to approve any technique needed to protect the nation.

The memorandum also said that executive branch officials, including those in the military, could be immune from domestic and international prohibitions against torture for a variety of reasons, including a belief by interrogators that they were acting on orders from superiors "except where the conduct goes so far as to be patently unlawful." Another memorandum said the Geneva Conventions did not apply to the conflict in Afghanistan.

Mr. Hutson, who is dean and president of the Franklin Pierce Law Center in Concord, N.H., said that Mr. Gonzales "was not thinking about the impact of his behavior on U.S. troops in this war and others to come."

"He was not thinking about the United States' history in abiding by international law, especially in the wartime context," he said. "For that reason, some of us think he is a poor choice to be attorney general."

Mr. Hutson said talks with other retired senior military officials had not yet produced a decision on how to oppose the selection, though testifying at the hearings was a possibility. He said that while several opposed the nomination, some were unsure if opposition would be "worth the effort" because of little expectation the nomination could be derailed.

Brig. Gen. James Cullen, retired from the Army, said on Wednesday that he believed that in supervising the memorandums, Mr. Gonzales had purposely ignored the advice of lawyers whose views did not accord with the conclusions he sought, which was that there was some legal justification for illegal behavior.

"He went forum-shopping," General Cullen said, saying Mr. Gonzales had ignored the advice of military lawyers adamantly opposed to some of the legal strategies adopted, including narrowly defining torture so as to make it difficult to prove it occurred. "When you create these kinds of policies that can eventually be used against your own soldiers, when we say 'only follow the Geneva Conventions as much as it suits us,' when we take steps that the common man would understand is torture, this undermines what we are supposed to be, and many of us find it appalling," he said.

General Cullen, a lawyer in New York City, said the group of former military lawyers who oppose the nomination hoped to decide soon what specific action to take.

The memorandums produced largely by lawyers in the Justice Department and other government agencies created great bitterness at the time among military lawyers, who said they were not consulted.

Mr. Gonzales and the White House have already been put on notice by Senate Democrats that he should expect to be questioned vigorously about his role in the memorandums. Senator Patrick J. Leahy of Vermont, the Judiciary Committee's ranking Democrat, sent several letters to Mr. Gonzales, the most recent of which said that "you will be asked to describe your role in both the interpretation of the law and the development of policies that led to what I and many others consider to have been a disregard for the rule of law," the practices at Abu Ghraib. "You will be called upon to explain in detail your role in developing policies related to the interrogation and treatment of foreign prisoners."

When the memorandums began appearing this year in news accounts in The New York Times and elsewhere, the White House said in a statement that they had been only advisory opinions and that the administration did not and had not condoned torture or mistreatment.

In a confidential report this summer disclosed recently, the International Committee of the Red Cross said that the interrogation techniques regularly practiced at Guantánamo were tantamount to torture.

[Moses]

June 10, 2004

QUESTION: Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law.

So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

BUSH: Look, I'm going to say it one more time. Maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you.

We're a nation of law. We adhere to laws. We have laws on the books. You might look at these laws. And that might provide comfort for you. And those were the instructions from me to the government.

[Moses]

Gonzales: The Fight Is On

Wed Jan 5, 5:19 PM ET

 Op/Ed - The Nation

Bruce Shapiro

It says something that the most vigorous opposition to Alberto Gonzales's nomination for US Attorney General emanates from recently retired military officers, not the civil rights lobby. It also says something that even as the White House, through a new Justice Department (news - web sites) memo, sought to defuse Gonzales's record as the legal godfather of Abu Ghraib and waterboarding, word leaked of an emerging Administration plan for lifetime internment of terror suspects, without trial, in a worldwide network of US-built prisons. This is the first Attorney General nomination of global consequence, a dimension to which Washington only slowly awakened as Gonzales headed into his testimony before the Senate Judiciary Committee.

 <br>From the day he was named by President Bush, Gonzales posed a dilemma for Democrats and civil rights organizations: Is this nominee worth fighting? Conventional wisdom counseled caution: As the first Latino AG nominee, he has a compelling personal yarn; he would secure easy confirmation from the Republican Senate; and besides, Gonzales is ABA--Anybody But Ashcroft. Democrats (notably New York's Chuck Schumer) immediately signaled their likely acquiescence. For weeks, most leading civil rights groups, with the exception of the defiant Center for Constitutional Rights, limited themselves to toothless calls for "vigorous scrutiny." The best liberals could hope for, went the insiders' whispers, would be to "make a record" that might inhibit a future Gonzales nomination to the Supreme Court.


On the eve of the Gonzales hearings, a different dynamic began to emerge. First the Justice Department published a memo "superseding" the elaborate justification for torture Gonzales himself had commissioned from the Office of Legal Counsel's Jay Bybee: a new memo so patently timed to the hearings that it only made questions for the nominee more compelling, especially since the White House continued to withhold crucial documents detailing Gonzales's role in the torture scandal. Notable, too, was the new memo's overt evasion of the original Bybee document's assertion of unreviewable presidential authority to classify prisoners outside the protections of the Geneva Conventions and torture laws.


Then the intervention of a dozen retired high-ranking military officers--some of them lifelong Republicans--made it clear that this is no ordinary confirmation fight. No domestic Cabinet nominee has ever been charged by generals with having "fostered greater animosity toward the United States, undermined our intelligence gathering efforts and added to the risks facing our troops around the world." These career officers--who take their oaths to the Constitution, not George Bush --believe that Gonzales's legal tactics are wrecking years of post-Vietnam efforts to prevent contemporary My Lais.


It's one thing for the ACLU to criticize Gonzales, quite another when he gets denounced by the very military leadership Republicans have long claimed to stand for. The officers' letter provided covering fire as People for the American Way--until January in the "cautious scrutiny" camp--added its full-throated opposition, and religious leaders began to speak up.


These retired officers (and Human Rights First, which sponsored their press conference) remembered what Democratic pragmatists forgot in the despairing weeks of November: For reasons ranging from ideology to personal malfeasance, seemingly secure Cabinet confirmations can spin wildly out of control when the heat is on--witness John Tower and Zoë Baird. And Gonzales is not universally admired in the Senate Republican Caucus. Lindsey Graham of South Carolina, formerly with the military's legal corps, remains disgusted by Abu Ghraib and the chain of decisions that led to it. Just days before Gonzales's hearing, Senator Richard Lugar blasted the new White House internment-without-trial plan. (That plan, depending on the existence of authoritarian allies to do our dirty work, suggests just how cynical is the President's "democracy on the march" rhetoric.)


So the fight is joined. Gonzales, it is true, is not a fanatical religious conservative or an orthodox strict constructionist. His record suggests instead an enthusiastic apostle of the imperial executive. "Making a record" in the event of his Supreme Court nomination is at best secondary: The far more immediate danger is the record he will make as Attorney General, and the record of defeatism Democrats will establish if they offer anything less than principled opposition. With the Gonzales fight, the Senate--Democrats and Republicans alike--directly confronts issues that have lurked in the background for four years: questions not just of human rights for terrorism suspects worldwide but of a presidency absorbed in its own quest for unrestrained power, both domestic and international.

[Moses]

Expect Democrats to put this intriguing question to Alberto Gonzales, Bush’s Attorney General nominee: Back in 1996, what part did he really play in getting then-Governor Bush out of jury duty in a drunken-driving case? Had Bush not been excused, he would had to disclose his own 1976 DUI arrest and conviction — an incident that was not publicly disclosed until the last days of the 2000 campaign. Bush had left blank on checkbox in the court questionnaire, whether or not he had ever been “accused” in a criminal case.

It is now alleged that Gonzales failed to mention to the Senate Judiciary Committee that he asked and received an off-the-record conference in the judge’s chambers, getting Bush off the hook from jury duty. Senate Democrats put off a vote temporarily on White House counsel Alberto Gonzales’ nomination, complaining he had provided evasive answers to questions about torture and the mistreatment of prisoners.

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