The usual suspects–the ACLU, People for the American Way, congressional Democrats–are consolidating forces to defeat the confirmation of attorney general-appointee Alberto Gonzalez when hearings open tomorrow. Gonzalez is the new John Ashcroft.
Just those opponents’names alone are enough for me to support Gonzalez, because, as ever, the real reason for the anti-Gonzalez salvos is nakedly political: the attorney general appointee is wildly popular among Hispanics, and George W. Bush and the Republican Party are slowly shaving off portions of the Hispanic vote that liberal Democrats have traditionally assumed belongs to them by divine right. Still, there is a serious issue at stake with regard to the Gonzalez nomination that has swayed some usually sane political commentators, such as the Washington Post?s Anne Appelbaum, to join the loonies in opposing him. In August 2002, Gonzalez, acting in his role as White House counsel, released a memo to the Justice Department?s office of Legal Counsel that appeared to authorize the torture–or at the very least, the near-torture–of suspected terrorists in certain hypothetical extreme cases. The memo, issued in the wake of the ghastly mass-murders of Sept. 11, 2001, was, it is said, used to justify the shameful treatment of Iraqi prisoners at Abu Ghraib.
Last week the Justice Department, which had originally gone so far as to redefine “torture” in such away as to permit certain kinds of prisoner mistreatment (a position that Bush himself repudiated), after re-examining the legal issues at stake, issued a second memo declaring that torture, even in cases of international terrorism, is always contrary to U.S. policy. Gonzalez himself had asked the Justice Department last year to review the torture issue
Now, of course, Bush?s enemies are waving around the “torture memo,” as they call Gonzalez?s original 2002 statement, and they have persuaded even sound minds such as Applebaum?s to buy into their theory that Gonzalez is unfit to serve in Bush?s Cabinet.’Fortunately, Pepperdine University law professor Douglas Kmiec, who headed the OLC during the Reagan and George H.W. Bush administrations, writes a sound defense of Gonzalez and the younger Bush?s Justice Department in today?s Wall Street Journal. Kmiec argues that the Justice Department?s–and Gonzalez?s willingness to reconsider their original positions is a good thing–for it demonstrates the integrity of the administration?s lawyers, who are clearly willing to admit mistakes and re-examine earlier positions. Kmiec writes:
“[L]et us not forget the context in which the earlier memorandum had been authored. The world in early 2005 looks very different from the gloomy picture immediately after 9/11. We now better comprehend the highly unusual, non-nation-state nature of the world-wide radical Islamist foe that has declared, and is making, war on the U.S. Today, it is possible to say, as the OLC has, that torture is no less’abhorrent or unlawful’even when premised upon protecting national security. But this realization has been made possible more by heroic battlefield sacrifice than by legal acumen….
“On the eve of Mr. Gonzales?s Senate confirmation hearings, the new memo helpfully corrects an insidious misimpression about Justice Department lawyering. No attorney general can ever permit the OLC to be perceived as a band of lawyers engaged in sharp practice looking for legal loopholes. Known as the’attorney general?s lawyer,’the OLC must always be guided by the highest ethical standard answering specific questions in the most objective manner possible. This includes even the ability to say “no” to the president when the law so directs. President Reagan dearly wanted the power to line-item-veto excessive spending matters, and a popular theory in his second term was that he could claim that as an inherent power. The OLC canvassed legal history and practice and concluded otherwise, and while the Gipper was not pleased by the OLC?s determination, he respected it.
“Thankfully, it is rare for the OLC to need to re-examine or overrule earlier advice; but it is not unprecedented. Again, in Reagan?s second term, a previous OLC opinion had concluded that individuals with AIDS were outside the protections of federal civil-rights laws. Two years later, the OLC reconsidered and concluded that the law did, in fact, protect individuals with AIDS against unreasoned discrimination. As with the torture memo, the AIDS re-examination had the benefit of subsequent events–a later Supreme Court opinion, better scientific information, a more clearly manifested intent of Congress as well as the specific circumstances in which those with AIDS were being wrongfully excluded from federally supported programs.”
I think that both Gonzalez and the Justice Department have acted with commendable courage and legal acumen. As a medievalist by academic training, I know that torture, contrary to the usual liberal assumptions, works with ghastly efficiency to extract information. The Romans, those most thorough of legalists, used torture routinely in interrogations of suspects. So it?s always tempting, in times of national emergency such as the aftermath of 9/11, to imagine situtations in which we could save lives via the third degree. It is to the credit of the Bush administration?s lawyers that they realized with the passage of time that such actions are unworthy of Americans, period. I don?t want to be tortured when the next Janet Reno decides to go after the next vast right-wing conspiracy, and Alberto Gonzalez deserves confirmation if only for realizing that he will never be a Janet Reno.