Legal Affairs May 2007

Another Gonzales Horror Story

Every day that Attorney General Alberto Gonzales is allowed to remain in office is corrosive to constitutional governance.

The principal drafter of this "torture memo" was John Yoo, then deputy chief of the Justice Department's Office of Legal Counsel, the elite office that advises the president on what he can and cannot legally do. Yoo, a law professor before and since then, shares Addington's absolutist views. Both men are also—unlike Gonzales—extremely smart and well versed in the relevant law. With Yoo at Justice, Bush, Cheney, Addington, and Gonzales could get legal blessing for just about anything they wanted to do.

As Newsweek detailed in a February 6, 2006, article, this changed dramatically after Yoo, whom Ashcroft distrusted, returned to academia and Goldsmith, also a law professor, became head of the OLC in late 2003. Goldsmith is also a strong conservative, but he turned out to have far more mainstream views on war powers than Yoo and the White House crowd. Goldsmith issued a succession of legal opinions reining in the distended Addington-Yoo claims.

First Goldsmith found that the U.S. was bound by Geneva Convention protections against coercive interrogation of any and all citizens of occupied Iraq. Then he found the Bush surveillance program to be unlawful; this led to the March 2004 refusals of Comey and Ashcroft to sign the recertification. (The basis for Goldsmith's apparent disagreement with prior certifications is unclear.) Then Goldsmith decided to withdraw the August 2002 OLC torture memo as legally indefensible.

The White House was furious. But Comey and Ashcroft backed up Goldsmith. And the rule of law prevailed.

That was three years ago. Since then principled professionals have been streaming out of the Justice Department and political hacks have been streaming in. Goldsmith left in the summer of 2004 for Harvard Law School. Gonzales succeeded Ashcroft (almost a civil libertarian by comparison) as attorney general in February 2005. Comey—derisively dubbed "Cuomo" by Bush—left in August 2005. Philbin left after the White House blocked a promotion. Others have also left. And now, with McNulty's departure, the No. 2 and No. 3 offices—as well as the OLC—will lack Senate-confirmed appointees.

Meanwhile, the attorney general has proved himself unworthy of the job many times over, even apart from his pathetic mishandling of and contradictory statements about the now-infamous firings of eight (and perhaps more) U.S. attorneys.

Daniel Metcalfe, a respected career lawyer who recently retired as head of the Office of Information and Privacy after more than 35 years at the Justice Department, described Gonzales's tenure in an interview last month with Tony Mauro of Legal Times:

"[Under Ashcroft] generally speaking, there was a very respectable level of competence (in some instances even exceptionally so) and a relatively strong dedication to quality government.... [Under Gonzales] there was an almost immediate influx of young political aides beginning in the first half of 2005 ... whose inexperience in the processes of government was surpassed only by their evident disdain for it....

"It became quite clear that under Gonzales, the department placed no more than secondary value on the standards that I and my office had valued so heavily for the preceding 25 years—accuracy, integrity, responsibility, and quality of decision-making being chief among them.... [The] strong tradition of independence over the previous 30 years was shattered in 2005 with the arrival of the White House counsel as a second-term AG. All sworn assurances to the contrary notwithstanding, it was as if the White House and Justice Department now were artificially tied at the hip ... as if the current crop of political appointees ... weren't even aware of the important administration-of-justice principles that they were trampling."

Nor does Gonzales himself appear to be aware. After telling the Judiciary Committee about the hospital-room scene and its aftermath, Comey noted that "the right thing was done here, in part—in large part because the president let somebody like me and Bob Mueller meet with him alone."

When the president lets Gonzales meet with him alone, I would add, the Constitution is at risk.

Presented by

Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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