Gary V. Powell, Author

Inasmuch as the 9/11 terrorist attacks served as justification for many of the actions taken by the Bush Administration over the last few years, perhaps it is appropriate to consider the recent resignation of Alberto Gonzales on this anniversary of those attacks.

Gonzales, of course, was a corporate lawyer with a large Texas law firm before being appointed counsel to then Texas Governor George W. Bush. Bush went on to appoint Gonzales as the Secretary of State in Texas and as a justice on the Texas Supreme Court. When Bush was elected President, Gonzales accompanied him as White House Counsel, then was named to succeed John Ashcroft as Attorney General.

Not since Watergate and the Nixon Administration was the Department of Justice, which is led by the Attorney General, so abused. In a republican democracy, where the majority governs through its elected officials, one of the restraints on mere "mob rule" is the rule of existing law as enforced by the Justice Department and ruled on by the Judiciary. Seldom has Democracy and its sister Justice suffered more than at the hands of George W. Bush and his puppet, Alberto Gonzales.

Gonzales Sets the Tone for Torture

Part of the Gonzales legacy is his now infamous January 25, 2002 memo, written when he was White House Counsel. In this memo, Gonzales describes the restraints imposed by the Geneva Convention on the treatment of prisoners of war as "quaint" when applied to enemy combatants seized in the "War on Terror." Gonzales' memo is widely recognized as providing the legal foundation for a Bush Administration policy of prisoner abuse (if not outright torture) and for a "rendition" program used by the CIA whereby suspected terrorists are whisked away to "black prisons" in countries like Egypt, which has no compunction against and actually a proud history of torture.

Gonzales could just as easily have opined that the Geneva Convention and 1996 War Crimes Act place restraints on the President. He could just as easily have argued that taking the high road in the "War on Terror" would be better for the US in the long run, because this "war" is as much about public opinion and historical judgement as anything.

Yet, Gonzales chose to serve his masters rather than serving the law. Instead of standing up for justice, Gonzales wrote a twisted legal opinion that opened the door to the Guantanamo Gulag, the horrors of Al Grahib, and the continuance of CIA Black Ops. Surely, few activities have brought the US worse publicity. Few activities will be judged more harshly by history.

Warrantless Surveillance

Gonzales was also the Bush Administration's man behind its "warrantless surveillance" scheme. The real legal issue here was whether the President had the unfettered power to order warrantless electronic eavesdropping on phone conversations of suspected terrorists, when the law clearly prohibited it and indeed provided a special court to allow for expeditious granting of warrants in cases involving national security.

Again, Gonzales provided the "legal" reasoning at the foundation of the Administration's authorization of "warrantless surveillance." Then, according to several sources in testimony to the US Senate, when John Ashcroft (then the AG) was seriously ill and in the hospital, Gonzales was one of the men who tried to get a nearly comatose Ashcroft to reauthorize the program. This, despite the fact that Ashcroft had earlier said he would not reauthorize the program, and the acting AG, James Comey (and other Justice Department officials) also opposed it. Comey characterized Gonzales' hospital visit as an outrageous attempt to take advantage of dying man.

Again, Gonzales could have done the right thing. He could have told his bosses (Bush and Vice President Cheney) that "warrantless surveillance" was illegal (as most everyone who has considered it has concluded). He could have refused to accompany Andy Card to the hospital that night, in an attempt an an "end run" around a dying man. He could have told the Senate Judiciary the truth about why he was at the hospital, instead of lying under oath as most believed he did. 

Yet, Gonzales chose to serve rather than exercise the independent good judgment required of any man, especially a man sworn to uphold the Constitution.

President Bush characterized Gonzales' resignation as the result of "politics." What role does failure to do the appointed job, lying, and otherwise bad behavior play in all of this?

Fired Assistant Attorney Generals

Although many people think Gonzales was brought down for the firing of a number of assistant AGs for political purposes, this really misses the point.

Gonzales led a Justice Department that saw its role as a puppet for Administration ideology, rather than a defender of Constitutional and legal rights. One of the ways this played out was that Gonzales not only oversaw the firing of qualified people who lacked the requisite zeal, from the Administration's perspective, he characterized the firings as "for cause." The distinction is huge. People who were reputable, who had done a good job, would now have a tarnish on their resumes--they'd been fired for poor performance, so said the Administration, when in truth their performance was not the issue.

When asked about his role in this sleazy endeavor, Gonzales incredibly claimed lack of memory, although he headed Justice during the greatest purge of assistant AGs in history.

Again, here's a man willing to blindly serve George Bush's ideology at the expense of individual reputations, at the expense of the integrity of his office. He could have done the right thing and refused to implement the firings. Instead he did the wrong thing, then lied about it.

The Padilla Case

This case serves as the basis for a fictional event in my novel, Beyond Redemption. In real life, Jose Padilla, an American citizen was arrested on US soil and characterized by the Bush Administration as an enemy combatant. As such, he was incarcerated without a trial and held indefinitely in solitary confinement without access to counsel. Eventually, Mr. Padilla, got his day in court and when it looked like he would prevail in the Supreme Court, Mr. Gonzales' Justice Department, charged with prosecuting the case, withdrew it's claim that Padilla was an enemy combatant intent on a "dirty bomb" attack. Justice then pursued the case in the civilian criminal courts, where it should have been all along, according to even some of the staunchest conservative jurists. Several years after his arrest and incarceration, Padilla was recently convicted on lesser charges.

But the case is no vindication of Gonzales and the Bush Administration. In fact, it appears likely that the original "dirty bomb" charges against Padilla were unfounded. It also appears that the even the Roberts Supreme Court would have rejected Justice's view that the President alone could decide when an American citizen arrested on US soil could be characterized as an enemy combatant and denied all of his Constitutional rights. And, as it turns out, the civilian criminal law system, which Gonzales and the Bush Administration fought so hard to avoid, actually did its job--it convicted Padilla of the lesser charges against him while affording his right to habeas corpus, access to counsel, and a speedy trial by a jury of his peers.

Again. Gonzales could have done the right thing. He could have said that treating Padilla as an enemy combatant was so contrary to everything in the Constitution that the law would have been better served by trying him originally in the civilian criminal courts. Instead, he conjured convoluted legal arguments to support his and the Administration's position. He wasted millions of taxpayer dollars. He squandered an opportunity to stand up for the Constitution rather than tear it down.

The Legacy

One of the reasons I went to law school was because I believed in the power of the law to protect the rights of the minority. I saw the law as a marker between tyranny of an out of control government (like the Bush and Nixon Administrations) and people seeking equality in the workplace, protection against unreasonable search and seizure, and cruel and unreasonable punishment.

The legacy of the Gonzales Justice Department is that in every instance where it could have championed the law and the Constitution, it did the other thing. It championed torture, warrantless searches, denial of Constitutional rights, and petty firings of decent people.

Then Gonzales, our chief law enforcement officer, lied about it. And the President claimed Gonzales' resignation was due to nothing more than politics.

The Bush Administration has another chance to do the right thing. It could nominate someone other than a political hack to serve out Gonzales term.

It could, but based on its record,  it probably won't.