Attorney General Alberto Gonzales should save President Bush the trouble of asking for it — a procedure that obviously pains the president when it come to loyal aides — and submit his resignation immediately.
Gonzales may well be a decent person with a compelling personal history. And the position of attorney general has certainly been politicized in our recent history. But Gonzales seems to be out of his depth as attorney general and has a history of supporting interpretations of the law that grant powers to the executive branch that undermine our constitutional system of checks and balances.
The peremptory firings of eight U.S. attorneys that precipitated the current crisis is troubling, but may be the least of Gonzales’ trespasses against limited government.
U.S. attorneys serve at the pleasure of the president rather than for fixed terms. But they have been insulated (albeit imperfectly) from political pressures by important customs and practices that give them independence when they make life-and-death decisions about which cases to prosecute and whom to indict in their districts. The evidence, however, keeps growing that these eight were removed because of discontent in the White House with the political ramifications of such decisions.
The inept handling of these firings may reflect the naivete of an administration that during its first six years in power never faced a Congress controlled by the opposition party. But this case merely scratches the surface of Gonzales’ unsuitability for the position he holds.
Before becoming attorney general, Alberto Gonzales, who had been George W. Bush’s personal lawyer and held a number of positions in Texas, was White House counsel. As such he played an integral role in formulating administration policy on coercive interrogations.
He was influential in advising that the Geneva Conventions on treatment of prisoners of war did not apply to al-Qaida members and to those detained at the U.S. prison at Guantanamo Bay, and he was active in seeking legal authority for harsh interrogation tactics that the intelligence community found troubling and that went beyond the tactics enshrined in longstanding military directives.
In addition, he was an active promoter of the program of warrantless surveillance of U.S. residents (presumably in contact with foreigners suspected of having connections to terrorist organizations) that seems to violate the 1978 Foreign Intelligence Surveillance Act. And it was on his watch that the FBI mishandled a troubling number of National Security Letters that authorize surveillance without judicial oversight.
The extent to which these actions presume the president’s wartime powers are so expansive that they may override existing law and longstanding moral scruples is highlighted in the 2002 Bybee memorandum which Gonzales and White House counsel requested from the Office of Legal Counsel. That memorandum suggested existing U.S. laws outlawing torture might be unconstitutional if they encroached on the president’s power to conduct a military campaign. This kind of reasoning flew in the face of Supreme Court precedent — that the president’s power is at its minimum when Congress has legislated on a subject — and was repudiated by the U.S. Supreme Court in Hamdi v. Rumsfeld, where the court made clear that a state of war does not give the president a blank check.
The U.S. Justice Department has since repudiated the Bybee memorandum, but to our knowledge Gonzales never has.
Winking and nodding at torture or near-torture has confused those soldiers who must implement these policies in the field and contradicted the U.S. Army Field Manual, which categorically prohibited torture and coercion. Whether or not the instances of forcible interrogation that came to light at Abu Ghraib and elsewhere were caused by the efforts of Gonzales and others to find ways around U.S. laws and international conventions against torture, they have served to discredit the United States and undermine domestic and international support for military and other efforts directed against international terrorists.
Alberto Gonzales has consistently sought to enhance executive power, pushing it into questionable realms like near-torture and wiretapping Americans without a warrant, in service to a view of presidential wartime power that is almost absolute. To be sure, he has apparently done this at the behest of the president he serves. But executive overreaching has engendered the kind of backlash America’s founders, who hoped different branches of government would check overreaching by other branches, anticipated, making Gonzales’ position politically as well as philosophically untenable.
It is time for him to go.