Personal Finance

James A. Chamblee · Guest

The Gonzales question
Attorney general nominee Alberto Gonzales has more to answer for than just
Abu Ghraib.

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By Joe Conason

Nov. 13, 2004 | To his nomination as the first Hispanic attorney general
of the United States, Alberto Gonzales brings an inspiring personal story
and a blemished public record. His rise from immigrant poverty to the heady
heights of power testifies to enduring American opportunity. Yet his
performance as legal counsel in Austin and Washington has consistently
eroded traditional American respect for the rule of law and the rights of
the accused.

The historic elevation of Gonzales could ignite a long overdue national
debate on how we treat those accused and convicted of capital crimes -- in
particular, those whose guilt remains in doubt. At some point in the
ineluctable rise of his public standing -- already he is being discussed as
the next Supreme Court Justice -- Gonzales will have to answer for his
alleged negligence in handling such cases years ago, when he served as
counsel to then-Gov. George W. Bush.

As White House counsel, Gonzales has aggressively promoted policies that
undermine civil liberties and international law on the treatment of
prisoners. Although the soft-spoken lawyer usually remains in the
background, as befits a Bush loyalist, he has left no doubt about his
scorched-earth attitude toward prosecuting suspected terrorists and "enemy
combatants": Jail them first and charge them later, or maybe never. In a now
notorious January 2002 memo, he mocked the Geneva Convention and argued that
the war on terror had rendered "obsolete Geneva's strict limitations on
questioning of enemy prisoners and renders quaint some of its provisions."
Due to that quote, he will bear historic responsibility for the lasting
damage done to American prestige by the awful abuses at Abu Ghraib prison.

Yet despite the continuing criticism of his role in legitimizing brutality
and undermining the Bush administration's adherence to the Geneva Convention
in the treatment of prisoners, Gonzales is almost certain to be confirmed by
the Senate next year without serious trouble -- and not only because of the
heavier Republican majority. Democratic senators respect Gonzales and regard
his comparative moderation as at least a marginal improvement over the
fervent extremism of John Ashcroft. (An active Catholic, he probably won't
be ceremonially anointed with Crisco oil before assuming his new office, as
Ashcroft once was.) With Hispanic voters acting as a "swing" bloc in
national elections, the Democrats won't be eager to filibuster Gonzales,
which would be the only way to forestall his confirmation. They will be
reluctant to fall into the kind of ethnic trap set by Bush's father when he
nominated Clarence Thomas to the Supreme Court.

That doesn't mean Democrats on the Senate Judiciary Committee such as Ted
Kennedy and Pat Leahy won't demand answers from Gonzales about the "quaint"
memo, enemy combatants, and the most repressive aspects of the PATRIOT Act,
which he helped draft. (If true to their professed libertarian values,
Republicans should also question Gonzales sharply, but that might be
expecting too much.) Some senators will question him closely about
allegations first explored by journalist and author Alan Berlow last year in
the Atlantic Monthly. After examining confidential memoranda on death
penalty pleas that Gonzales prepared for Bush when he served as the Texas
governor's counsel, Berlow excoriated Gonzales for his "clear prosecutorial
bias." These brief memos were the basis for dozens of life-and-death
decisions by Bush during those years. His counsel's approach to those
choices seems to have been as casual and dismissive as that of the governor
himself.

According to Berlow, "Gonzales repeatedly failed to apprise the governor of
crucial issues in the cases at hand: ineffective counsel, conflict of
interest, mitigating evidence, even actual evidence of innocence." The final
phrase in that sentence is italicized because it is the actual evidence of
innocence -- ignored or minimized in one or more cases by Gonzales -- that
he will someday have to confront.

Advances in criminology and forensic science have forced even politicians
and experts who favor the death penalty to admit that innocent men and women
have been convicted of capital crimes -- and in some cases wrongly executed.
The likelihood that such gross injustice occurred in Texas, where scores of
convicts suffered execution while Bush was governor, is high. Research by
death penalty opponents is continuing on a number of specific cases where
the chances of error appear strongest, not only in Texas but across the
country. At least one such case, however, is among those that Gonzales once
briefed to Bush.

Dramatic evidence proving that the state of Texas killed an innocent man
probably won't emerge during the Gonzales confirmation hearings. It would be
better for that moment to occur outside the Senate's partisan atmosphere.
Cutting to the very legitimacy of our criminal justice system, the execution
of the innocent is an issue that ought to transcend party loyalty. Perhaps
we can even hope that when Gonzales and Bush finally confront the
consequences of their own negligence, they will support the reforms needed
to protect American society from state-sanctioned murder.

salon.com

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