Gonzales Must Go

May 2, 2007 • Commentary

With political support for Attorney General Alberto Gonzales collapsing, the White House is now attempting to save his job by making the case for his overall record. A White House spokesperson said recently that Gonzales “has done a fantastic job at the Department of Justice.”

Truth be told, Gonzales’s tenure is more scandalous even than the mess he created by firing eight federal prosecutors.

Take Gonzales’ disdain for the writ of habeas corpus. The Framers of the Constitution referred to habeas corpus as the “Great Writ” because it was a vital check on the power of the president to jail people without due process. Habeas corpus allows the accused to get a hearing before an impartial judge. If the judge finds that the arrest is unsupported by the facts or the law, he has the power to set the prisoner free.

After 9/11, Gonzales led a sustained assault on habeas corpus, arguing that judges could not “second guess” President Bush. Under this sweeping theory of executive power, the liberty of every American rests upon nothing more than the grace of the White House.

Gonzales has advised President Bush that he can surveil the email and phone conversations of Americans without having to apply for warrants. He even opined that warrantless home invasions would be legal. The warrant application process is the primary check on the power of the executive branch to intrude into people’s privacy. If the FBI can persuade an impartial judge to issue a warrant, a search or wiretap can be performed. However, if the judge is not persuaded, the application will be rejected, and the investigation must continue, or the case must be dropped. Gonzales has advised the president to bypass this “check” on police power.

When the New York Times revealed the National Security Agency’s secret domestic eavesdropping program, Gonzales insisted the practice was legal. When members of Congress sought details in order to determine whether the program was consistent with the law, Gonzales tried to allay concerns by saying the program was regularly reviewed. But when Justice Department lawyers began an investigation into the scope of the program, Bush and Gonzales sidelined the investigation by withholding the security clearances that would be necessary to discover the truth. Just trust us, they said.

Gonzales has also sown disdain for the constitutional prerogatives of the Congress. Before the Iraq war began, Gonzales argued that because a previous Congress had authorized a previous president to attack Iraq in 1991, Bush did not need congressional approval to launch an invasion of that country in 2003. By that bizarre logic, any president could launch a sudden attack against Japan or Germany since a previous congress authorized America’s entry into World War II.

When Congress responded to the Abu Ghraib prison scandal and other reports of torture and abuse by passing a law regarding the treatment of prisoners, President Bush signed the bill into law. It was later revealed that Bush had quietly declared his intention to “interpret” that law in a manner consistent with his own expansive view of executive branch authority. That presidential signing statement was a startling illustration of the administration’s view of law. Attorney General Gonzales seems to have advised Bush that he can do virtually anything he wants when the country is at war — and that the President alone gets to decide when that is.

Even outside of the context of the war against al‐​Qaeda, Alberto Gonzales has been an embarrassment. In area after area — from habeas corpus to separation of powers to executive responsibility — he has sought to strip out the limits that the Constitution places on presidential power. His fiasco regarding the firing of federal prosecutors is a petty offense when compared to the legal advice that he has conveyed to the President. The real scandal is his disregard for constitutional principles.

About the Author
Tim Lynch
Adjunct Scholar and Former Director, Project on Criminal Justice