Example #1 of the Bush agenda: Alberto Gonzales

Overview

So the Bolton nomination survived the committee phase, but without a positive recommendation, and the vote will be coming soon. I wish I thought there was a reasonable chance that the vote before the full Senate will not go along party lines--or that at least enough Republicans would vote against Bolton to keep him from becoming U.N. Ambassador. Sadly though, I am not optimistic.

I've said it before, and I'll say it again--go to Laura Rozen's site, War and Piece, for everything to know about the Bolton nomination. There you will find an abundance of reasons why the opposition to Bolton is NOT merely partisan in nature.

What really bothers me, however, is that the Bolton nomination is just a part of a much bigger scheme, as I explained in the previous post. I also said that I would explain in a post why three people should have been sacked rather than promoted. Well, there has been a slight change in plan. I will devote a separate post to each individual. And first up is...

Alberto Gonzales

As White House counsel, he helped write the Patriot Act, passionately defended it (while not really answering questions about it), and was a central player in policies that led to the abuse scandals in Iraq and Guantanamo Bay. A comprehensive look at how Gonzales helped shape administration policy in this regard is found at the website of Human Rights First. Included are all the relevant memoranda and letters. So, after all that, Bush promoted Gonzales to Attorney General, and thus put him in charge of the Department of Justice. As AG, he also ultimately controls the domestic efforts of the war on terror (thanks in large part to the Homeland Security Act), and he sets the policy and agenda for all federal criminal prosecution efforts. The DOJ contains approximately 60 organizations, including

• Bureau of Alcohol, Tobacco, Firearms, and Explosives
• Criminal Division
• Drug Enforcement Agency
• Federal Bureau of Investigation (FBI)
• INTERPOL--U.S. National Central Bureau
• National Drug Intelligence Center
• Office of Intelligence Policy and Review
• Office of Legal Policy
• Tax Division

Should you have any doubt that Gonzales ultimately is in charge of all these organizations, check out the organization chart at the DOJ website.

So why would Bush put him in such a position? Part of the answer lies in the dominant pattern in Gonzales's political career. As explained in this biography of Gonzales, prior to his public career, Gonzales was a partner with the Houston-based law firm Vinson & Elkins (the firm that represented Enron--gee, what a coincidence). In 1994, George W. Bush--then governor of Texas--appointed Gonzales as general counsel. Gonzales's next public post came in 1997 as Texas Secretary of State, for which he was appointed by...George W. Bush. In 1999, there was an unexpired term on the Texas Supreme Court, and George W. Bush appointed Gonzales to fill that term. When Bush became President in 2001, he tapped Gonzales to be White House counsel. And now, thanks to Bush, Gonzales is Attorney General. What this means is that Gonzales owes his entire political career to Bush, and Gonzales is going to be controlled by Bush and his evil genius, Karl Rove.

Another (and related) reason for Gonzales's promotion is that in the war on terror, Gonzales has always advocated basically unlimited discretion and power for the President. Gonzales's position--and it's repeated rejection by the courts, including the U.S. Supreme Court--is detailed in a briefing paper on the Human Rights First site. The opening summary is a good one:

Gonzales has claimed sweeping authority for the President as Commander-in-Chief to unilaterally determine who is an enemy combatant and to detain any such person indefinitely and incommunicado without any established legal rights and subject only to such procedural protections as the President deems prudent in the individual case.

According to Gonzales, that "sweeping authority" extends to U.S citizens. In a February 24, 2004, speech before the American Bar Association, Gonzales discussed the cases of Yaser Hamdi and Jose Padilla, both U.S. citizens. Hamdi was fighting with the Taliban in Afghanistan when he was captured, and Padilla was arrested in Chicago. Both were declared "enemy combatants" by Bush and held without charges or representation. Early in the speech, Gonzales criticized press reports of these cases:

To state repeatedly that detainees are being held without charge mistakenly assumes that charges are somehow necessary or appropriate. But nothing in the law of war has ever required a country to charge enemy combatants with crimes, provide them access to counsel, or allow them to challenge their detention in court-- and states in prior wars have generally not done so. It is understandable, perhaps, that some people, especially lawyers, should want to afford the many due process protections that we have grown accustomed to in our criminal justice system to the individuals captured in our conflict with al Qaeda. It has been many years, fortunately, since the United States has been in a conflict that spans the globe, where enemy combatants have been captured attempting to attack our homeland. But the fact that we have not had occasion to apply the well-established laws of war does not mean that they should be discarded. The United States must use every tool and weapon--including the advantages presented by the laws of war--to win the war against al Qaeda.

(emphasis added). Notice that Gonzales said nothing about U.S. citizens. Everything is couched in terms of war in general and the war on terror in particular. This should be a huge concern for all U.S. citizens.

Cause for such concern is exemplified by the Hamdi case. Hamdi was held without charges being filed against him and without any due process rights granted. The Fourt Circuit Court of Appeals had ruled that this was permissible, that the President had full discretion to do this, and that no Court had authority to say otherwise once it was determined that Hamdi was an "enemy combatant." In his speech, Gonzales had this to say about the Fourth Circuit's decision:

The Government's record in the courts on the scope of the President’s authority, as you probably know, has been mixed. The Fourth Circuit in Hamdi agreed that the President may detain enemy combatants, including American citizens, and further agreed that judicial review should be highly deferential. The Court reasoned that the designation of Hamdi as an enemy combatant bears the closest imaginable connection to the President's constitutional responsibility during the actual conduct of hostilities, and that while judicial review does not disappear during wartime, the review of battlefield capture in overseas conflicts is a highly deferential one.

Applying this deference to the facts of the case, the Fourth Circuit concluded that despite his status as an American citizen currently detained on American soil . Hamdi is not entitled to challenge the facts presented by the United States. The Court held that where as here, a petitioner has been designated as an enemy combatant and it is undisputed that he was captured in a zone of active combat operations abroad, further judicial inquiry is unwarranted when the government has responded to the petition by setting forth factual assertions which would establish a legally valid basis for the petitioner’s detention.

*******

You will not be surprised to learn that we found the Fourth Circuit decision to be brilliant, and the panel's reasoning incisive and unimpeachable.

The United States Supreme Court disagreed. While five of the Justices agreed that the President has the authority to detain a citizen as an enemy combatant, eight of the nine reversed the Fourth Circuit on due process issues. Justice O'Connor, writing for four of the Justices, said the following:

The United States Court of Appeals for the Fourth Circuit held that petitioner's detention was legally authorized and that he was entitled to no further opportunity to challenge his enemy-combatant label. We now vacate and remand. We hold that although Congress authorized the detention of combatants in the narrow circumstances alleged here, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. (124 S. Ct. at 2635).

*******

We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker. (124 S. Ct. at 2648).

*******

Any process in which the Executive's factual assertions go wholly unchallenged or are simply presumed correct without any opportunity for the alleged combatant to demonstrate otherwise falls constitutionally short. As the Government itself has recognized, we have utilized the "some evidence" standard of proof. Brief for Respondents 35. That is, it primarily has been employed by courts in examining an administrative record developed after an adversarial proceeding-- one with process at least of the sort that we today hold is constitutionally mandated in the citizen enemy-combatant setting. See, e.g., St. Cyr, supra; Hill, 472 U.S., at 455-457, 105 S.Ct. 2768. This standard therefore is ill suited to the situation in which a habeas petitioner has received no prior proceedings before any tribunal and had no prior opportunity to rebut the Executive's factual assertions before a neutral decisionmaker. Today we are faced only with such a case. Aside from unspecified "screening" processes, Brief for Respondents 3-4, and military interrogations in which the Government suggests Hamdi could have contested his classification, Tr. of Oral Arg. 40, 42, Hamdi has received no process. An interrogation by one's captor, however effective an intelligence gathering tool, hardly constitutes a constitutionally adequate factfinding before a neutral decisionmaker. (124 S. Ct. at 2651).

(emphasis added). And in case O'Connor is too liberal for some of you, then read these words from Justice Scalia:

The proposition that the Executive lacks indefinite wartime detention authority over citizens is consistent with the Founders' general mistrust of military power permanently at the Executive's disposal. In the Founders' view, the "blessings of liberty" were threatened by "those military establishments which must gradually poison its very fountain." The Federalist No. 45, p. 238 (J. Madison). No fewer than 10 issues of the Federalist were devoted in whole or part to allaying fears of oppression from the proposed Constitution's authorization of standing armies in peacetime. Many safeguards in the Constitution reflect these concerns. Congress's authority "[t]o raise and support Armies" was hedged with the proviso that "no Appropriation of Money to that Use shall be for a longer Term than two Years." U.S. Const., Art. 1, § 8, cl. 12. Except for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article II. As Hamilton explained, the President's military authority would be "much inferior" to that of the British King:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy: while that of the British king extends to the declaring of war, and to the raising and regulating of fleets and armies; all which, by the constitution under consideration, would appertain to the legislature." The Federalist No. 69, p. 357.

A view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions. (124 S. Ct. at 2668-2669).

(emphasis added). Gonzales said in his speech that the President has the authority to hold any U.S. citizen as an enemy combatant for an indefinite amount of time, never charge that citizen with anything, deny him legal counsel, and never give him a hearing of any kind. In other words, Gonzales feels that the President can avoid and violate the U.S. Constitution and the other laws of this nation with impunity. In an 8-1 vote, the Supreme Court said "WRONG!" As Justice Scalia noted, Gonzales's position violates the very principles on which this country was established. That is a big part of the reason why all Americans should be nervous about Gonzales being Attorney General.

Some of you might think that the Hamdi case should not cause alarm. After all, the evidence indicates that Hamdi was fighting for the Taliban. He was captured by the Northern Alliance during the war in Afghanistan. It therefore appears that he was taken as a prisoner during a war on foreign soil. Since no U.S. citizen here in this country could meet those circumstances, we have nothing to worry about, right?

Don't count on it.

Remember what I said early on in this post:

As AG, he also ultimately controls the domestic efforts of the war on terror (thanks in large part to the Homeland Security Act), and he sets the policy and agenda for all federal criminal prosecution efforts.

Some of the criminal laws Gonzales gets to enforce are those in Chapter 113B of Title 18 of the U.S. Code. Those statutes deal with terrorism, and 18 U.S.C. § 2331 defines the pertinent terms:

As used in this Chapter--

(4) the term “act of war” means any act occurring in the course of—
(A) declared war;
(B) armed conflict, whether or not war has been declared, between two or more
nations; or
(C) armed conflict between military forces of any origin; and

(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws
of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination,
or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.

(emphasis added). Those definitions are very broad, or at least open to very broad interpretation. The war on terror certainly comes within the definition of "act of war." Any criminal violation could be a possible act of "domestic terrorism," and for anyone thinking that it will be rare that a crime could be determined to meet the criteria of § 2331(5)(B), remember two things: 1) the person who ultimately decides how the government will seek to enforce that provision is Alberto Gonzales, and 2) he is the man that said that locking up U.S. citizens for an indefinite time without charging them, allowing them legal counsel, or giving them a hearing of any kind--in violation of the Constitution--is perfectly alright.

Thanks to George W. Bush, that man has become The Man, and now he is in a position to affect all of our daily lives, and he has shown he does not care about the Bill of Rights.