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.

Every day that Attorney General Alberto Gonzales is allowed to remain in office is corrosive to constitutional governance and an invitation to further politicization of the Justice Department.

That is the main lesson of former Deputy Attorney General James Comey's astonishing revelations on May 15 about Gonzales's sinister involvement in a March 2004 effort to continue a then-secret warrantless eavesdropping program after it had been declared unlawful by then-Attorney General John Ashcroft and his subordinates.

Meanwhile, the May 14 resignation of Paul McNulty, Comey's successor as deputy attorney general, further depleted the ranks of principled professionals in the demoralized department, which Gonzales has been filling with inexperienced political hacks. In the words of Arlen Specter, the Senate Judiciary Committee's senior Republican, as long as Gonzales is in charge, "it's embarrassing for a professional to work for the Department of Justice."

Comey, testifying to the Senate Judiciary Committee, described an extraordinary scene the night of March 10, 2004, in George Washington University Hospital's intensive care unit. Ashcroft, so sick with pancreatitis that he had designated Comey as acting attorney general, was drugged with painkillers after the removal of his gallbladder the day before.

Comey was tipped off at 8 p.m. by Ashcroft's chief of staff (who had been alerted by Ashcroft's wife) that then-White House Counsel Gonzales and then-White House Chief of Staff Andrew Card were on their way to see Ashcroft. Comey said he had "some recollection" (but was not sure) that President Bush himself had called Ashcroft's wife—who had banned all visitors and phone calls—to pave the way for the Gonzales-Card visit. Comey correctly surmised that the White House was trying to "do an end run" around him, and to reverse Ashcroft's own decision of a week before, by getting the ailing attorney general to sign a recertification (due the next day) that the eavesdropping program was lawful.

Comey rushed to get to the hospital first, with sirens blaring and lights flashing. "[I] literally ran up the stairs with my security detail." While en route with his FBI bodyguards, Comey found it necessary to call for reinforcements by asking FBI Director Robert Mueller and other top Justice Department officials to join him at the hospital. And Mueller found it necessary (Comey recalled) to order Comey's FBI bodyguards by phone "not to allow me to be removed from the room under any circumstances." Wow.

When Gonzales arrived in the darkened room with Card, Comey was already there, along with Justice Department colleagues Jack Goldsmith and Patrick Philbin. Gonzales asked Ashcroft to sign the recertification. The patient, who had seemed "pretty bad off" to Comey, roused himself long enough to reject the White House emissaries' request "in very strong terms" and to remind them that Comey was acting attorney general. Gonzales and Card left without acknowledging Comey.

"I was angry," Comey recalled in his testimony. "I thought, I just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general because they had been transferred to me."

The next day, Comey continued, Bush reauthorized the surveillance program despite the Justice Department's firm position that it was unlawful. The president apparently did this at the urging of Gonzales, Card, Vice President Cheney, and Cheney's then-counsel (and now chief of staff), David Addington.

Bush backed down the morning after that—but only when threatened with mass resignations by top Justice Department officials. The key discussions came after a routine daily Oval Office briefing on terrorism. Bush took Comey alone into his study, where they had what Comey called "a very full exchange." Then, at Comey's urging, Bush met alone with Mueller. Both men evidently made it clear that they were about to resign, along with (probably) Ashcroft and others.

It was then that Bush—faced with a Watergate-like exodus that would surely have spurred demands for impeachment—yielded. He told Mueller to tell Comey to put the program on a sound legal footing. This took two or three weeks, Comey said. (He declined to discuss the nature of the program or the legal problems.)

Comey's testimony shows an especially ugly side to what I (and many others) have long seen as Gonzales's cloddish rubber-stamping of any and all of the bloated claims of power made by Bush, Cheney, and Addington, a legendary infighter with an extreme view of the president's war powers as virtually absolute.

These claims include the infamous, now-sort-of-withdrawn, August 2002 Justice Department memo arguing that the president could authorize, and thereby legalize, the congressionally banned torture—as well as the indefinite, incommunicado incarceration—of any and all persons he branded as "unlawful enemy combatants."

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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