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Gonzo But Not Forgotten: The Crimes of Alberto Gonzales

August 27, 2007

The welcome resignation of Attorney General Alberto Gonzales may be long overdue, but it is hardly the end of the story of his wrong-doing at the Bush White House and the Department of Justice. From illegal NSA domestic surveillance, condoning torture and the unprecedented expansion of presidential powers to undermining minority voting rights, the political purge of U.S. prosecutors and lying under oath to Congress, Gonzales' deception, misdeeds and blatant criminality extend well beyond Bush's beloved Fredo.
The rumors emanating out of Washington DC suggest that President Bush's politicization of the DOJ through the installation of his own praetorian guard will continue. On the second anniversary of his role in the Katrina disaster, Homeland Security chief Michael Chertoff is said to top the list of potential Bush replacements. And as ThinkProgress is reporting, Bush loyalist and domestic security neophyte Clay Johnson III may be tapped to replace Chertoff.
Congress must continue its investigations. Alberto Gonzales may be gone, but his crimes are not forgotten. As Winston Churchill famously said:

"Now this is not the end. It is not even the beginning of the end. But it is, perhaps, the end of the beginning."

Here, then, is a look back at the Top 10 Reasons Gonzales Had to Go:

[From March 14, 2007]
In the wake of his tortured press conference yesterday, politicians and papers across the nation are calling for the resignation of Attorney General Alberto Gonzales. But despite the flood of revelations that the White House and Gonzales' Department of Justice authored a plot to purge U.S. attorneys for purely partisan political advantage, President Bush is standing by his man.
Alberto Gonzales must resign. But his departure is required not merely because of his ham-fisted and duplicitous role in the firing of the Gonzales 8. Gonzales' disservice to the nation goes back to his days as White House counsel. For lying under oath, for abusing the office of Attorney General, for enabling a regime of torture, for violating the law with NSA domestic surveillance, for crushing privacy rights with the FBI's misuse of the Patriot Act, for gutting minority voting rights and for potentially obstructing justice in a cover-up of the outing of CIA operative Valerie Plame, Gonzales must resign or be fired.
Here, then, are the Top 10 reasons why Gonzales must go.

  1. Lying Under Oath
  2. Purging Prosecutors
  3. Misusing the Patriot Act's National Security Letters
  4. Authorizing Illegal NSA Domestic Surveillance
  5. Enabling John Yoo and Unchecked Presidential War Powers
  6. Rendering the Geneva Conventions "Quaint"
  7. Supporting Military Commissions and the End of Habeas Corpus
  8. Blessing Unprecedented Expansion of Presidential Signing Statements
  9. Facilitating a CIA Leak Cover-Up
  10. Gutting Minority Voting Rights

1. Lying Under Oath
During his January 18, 2007 testimony before the Senate Judiciary Committee, Gonzales almost surely lied about the political purge underway among the ranks of the U.S. attorneys, as well as the vital role of the Patriot Act in facilitating it.
During the January 18th hearing, Gonzales pompously declared, "I would never ever make a change in a United States attorney position for political reasons or that in any way would jeopardize an ongoing investigation." But as the email exchanges between Gonzales' chief-of-staff Kyle Sampson, White House Counsel Harriet Miers and Karl Rove deputy Scott Jennings show, that's exactly what was going on. A damning Sampson email described the system Gonzales' DOJ would use for ranking U.S. attorneys, keeping those who "exhibited loyalty to the president and attorney general" and sacking the prosecutors who "chafed against administration initiatives."
Gonzales also misled the Senate about the critical importance of a hitherto little-known provision of the Patriot Act enabling the Attorney General to appoint new prosecutors without Senate confirmation. He told the Senate Judiciary Committee that:

"I am fully committed, as the administration's fully committed, to ensure that, with respect to every United States attorney position in this country, we will have a presidentially appointed, Senate-confirmed United States attorney."

But as a September 13, 2006 Sampson email to Harriet Miers shows, Gonzales' DOJ was committed to exactly the opposite course of bypassing Congressional approval for its new U.S. attorneys.

"I strongly recommend that as a matter of administration, we utilize the new statutory provisions that authorize the AG to make USA appointments. [...] By not going the PAS route, we can give far less deference to home state senators and thereby get 1.) our preferred person appointed and 2.) do it far faster and more efficiently at less political costs to the White House."

2. Purging Prosecutors for Republican Political Advantage
Alberto Gonzales' politicization of the ranks of the DOJ's 93 U.S. attorneys (USAs) is simply unprecedented and extremely dangerous to American democracy. Despite the false claims of President Bush and his amen corner at the Wall Street Journal to the contrary, the mid-term sacking of USAs has no modern historical equivalent. As Gonzales' right-hand man Kyle Sampson himself put it, "In recent memory, during the Reagan and Clinton Administrations, Presidents Reagan and Clinton did not seek to remove and replace U.S. Attorneys to serve indefinitely under the holdover provision."
As I wrote yesterday, with its purge the White House was determined to do more than merely enforce loyalty to President Bush and entrench partisan Republican hatchet men throughout the DOJ's ranks. Simply put, the Bush White House planned to systematically drive down the turnout of Democrats and independents at the ballot box through an unaccountable campaign against "voter fraud." Suppressing potential Democratic voter turnout is one of the two essential prongs of the Republicans' electoral strategy of "Divide, Suppress and Conquer."
In the aftermath of yesterday's DOJ document dump, Alberto Gonzales cynical and duplicitous claim about this "overblown personnel matter" in his now infamous march 7, 2007 USA Today op-ed should be grounds enough for his dismissal.
3. The FBI, the Patriot Act and National Security Letters
Even as the U.S attorneys scandal was breaking, Gonzales found himself in hot water over the FBI's misuse of the so-called "national security letters" (NSLs) provided for under the Patriot Act. As privacy advocates and citizens concerned for civil liberties feared, a DOJ inspector general report showed that the FBI massively underreported its use of NSL's to monitor Americans' phone records, emails and other communications. Like FBI Director Robert Mueller, who declared "I am to be held accountable," Gonzales claimed that "we are serious about being responsible in the exercise of these authorities," some of which the DOJ's own inspector general deemed illegal.
4. Illegal NSA Domestic Surveillance
Gonzales' tenure should have long since come to an end with the December 2005 revelations surrounding the illegal domestic surveillance of Americans by the National Security Agency.
Despite the clear statutory language of the Foreign Intelligence Surveillance Act (FISA), the Attorney General has consistently maintained the President's inherent powers as Commander-in-Chief allow the Bush administration to wiretap the communications of American citizens without seeking the required FISA court warrants. As he told the Senate Judiciary Committee on February 6th, 2006:

"From the very outset, before the program actually commenced, it has always been the position that FISA cannot be interpreted in a way that infringes upon the president's constitutional authority."

Despite an overwhelming consensus of constitutional scholars to the contrary, Gonzales' Department of Justice claimed that the 2001 Authorization for the Use of Military Force (AUMF) and the wartime Commander-in-Chief powers give President Bush the statutory and constitutional basis for sidestepping the FISA process for domestic electronic surveillance. But as I wrote last February ("The Republicans' Constitutional Crisis"), Gonzales and his allies are downright sheepish when it comes to stating the logical conclusion of their position: that FISA itself is unconstitutional. Their trepidation is well founded; as a matter of law and of politics, an attack by Republicans on the constitutionality of the Foreign Intelligence Surveillance Act is bound to fail.
It is worth noting that Gonzales' January 2007 flip-flop on court approval for wiretapping Americans' international communications had less to do with a change of heart than with a change of control in Congress. Even more important, the Attorney General may have obstructed justice in getting President Bush to effectively block an April 2006 investigation into Gonzales' own role in the NSA program by withholding needed security clearances from the DOJ's own Office of Professional Responsibility.
5. John Yoo, the Unitary Executive and Unchecked War Powers
No review of Gonzales' essential role in the dangerous and unfounded expansion of presidential power would be complete without a discussion of John Yoo. Yoo, Gonzales' one-time underling at the White House Counsel's office and now a professor at the University of California, was the architect behind virtually every Bush administration attempt to establish unchecked war powers.
In an infamous 2001 memo, Yoo described presidential powers as Commander-in-Chief that would be both unlimited and unchecked:

"We think it beyond question that the President has the plenary constitutional power to take such military actions as he deems necessary and appropriate to respond to the terrorist attacks upon the United States on September 11, 2001...Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make."

As Gonzales' dark theoretician of the imperial presidency, Yoo's handiwork is behind almost every Bush administration blight on American tradition of civil liberties and governmental checks and balances. From establishing "enemy combatants", helping sculpt the NSA domestic spying program to advocating the secret detention of terror suspects and defining torture only as "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death," Yoo was Gonzales' right-hand man.
6. Rendering the Geneva Conventions "Quaint"
With Yoo, Alberto Gonzales has laid the theoretical framework for American torture of detainees in Afghanistan, Abu Ghraib, Guantanamo Bay and in secret "black" prisons around the world.
It was, after all, Gonzales' own tortured January 25, 2002 memo while White House Counsel that declared the Geneva Conventions "quaint." He provided the rationale behind the establishment of enemy combatant status for Al Qaeda and Taliban detainees, proscribing prisoner of war protections for them.
7. Military Commissions and the End of Habeas Corpus
The abuses of prisoners and the legal limbo of detainees at U.S. facilities in Abu Ghraib and Gitmo showed Gonzales' enemy combatant framework to be unworkable. In its June 2006 decision in the Hamdan case, the Supreme Court struck down President Bush's system of military commissions. As the Washington Post put it, the tribunals were "were neither authorized by federal law nor required by military necessity, and ran afoul of the Geneva Conventions."
But rather than heed the advice of most military leaders and base detainee legal proceedings on the Uniform Code of Military Justice, Attorney General Gonzales instead opted to move forward with a new Military Commissions Act undermining Common Article 3 of the Geneva Conventions. The act codified certain CIA interrogation techniques, exempted U.S. personnel from subsequent lawsuits, ended detainee access to U.S. courts and undermined habeas corpus protections.
With legal challenges to the Military Commissions Act likely heading back to the Supreme Court, Gonzales remains undeterred. As ThinkProgress reported on January 16th, Gonzales "blamed delays in trying terror detainees at Guantanamo Bay on legal challenges filed by their lawyers." Meanwhile, the Attorney General is pressing ahead with his case against supposed dirty bomber Jose Padilla, indicted in 2005 on conspiracy after being held for three years without charges.
8. Unprecedented Expansion of Presidential Signing Statements
As White House Counsel and Attorney General, Alberto Gonzales presided over the dramatic expansion of presidential signing statements. As the Boston Globe detailed in April 2006, President Bush has issued over 750 such statements to bills he signed, setting up potential constitutional confrontation with Congress as the White House provides its intent on how and whether it will enforce the laws of the United States. (In comparison, President Clinton issued 140 signing statements during his 8 years in office.)
Despite the fervent opposition of the American Bar Association to the White House's dangerous power grab with the signing statements, Attorney General Gonzales remains steadfast. During his July 18th, 2006 testimony before the Senate Judiciary Committee, wrongly claimed Bush had only issued "closer to 125 to 110" signing statements, and incorrectly asserted that the Boston Globe had retracted its figure of 750.
9. The CIA Leak Cover-Up
Largely overlooked in the aftermath of the conviction of Vice President Cheney's chief-of-staff Scooter Libby in the CIA leak case has been Alberto Gonzales' central role in facilitating a possible cover up.
As reminded us on Monday, the sequence of events surrounding the launch of Patrick Fitzgerald's investigation of the outing of Valerie Plame in October 2003 do not place Gonzales in the most positive light:

Everyone seems to have forgotten that then-White House Counsel Alberto Gonzales also presided over one of the more sordid aspects of the Plame scandal. When Gonzales first learned that the Justice Department had started an official investigation into the Plame leak, Gonzales waited twelve hours before putting the White House staff on notice that they had to preserve documents and electronic files. Which seemed than -- and seems now -- like an open invitation to "shredding and deleting," not to mention getting your story straight. In short, obstruction of justice.
And it's not as if Gonzales dithered trying to make up his mind what to do. He told White House Chief of Staff Andy Card about the investigation right away -- many hours before sending the official notification to preserve all evidence.

(Ironically, Attorney General was determined to pursue leaks of another kind. In April 2006, Gonzales signaled that he might pursue reporters publishing classified information in a host of cases embarrassing the President, including the CIA black prisons, illegal NSA domestic spying, monitoring of international financial transactions, and more. Only when Gonzales closed most of these investigations did Congressional Republicans express discontent with the Attorney General.)
10. Gutting the Voting Rights Act
Among the less publicized but perhaps most insidious of Alberto Gonzales' offenses against the people of the United States has been the integral part he's played in subverting minority voting rights in America.
Gonzales' duplicity is on display in voting rights cases in Georgia, Texas, and Mississippi, among other states. On February 16, 2006, the Attorney General proclaimed, "The right to vote is fundamental to the American dream, and so we will push for re-authorization of the Voting Rights Act." But behind the scenes, Gonzales has been undermining the enforcement of the Voting Rights Act of 1965 in practice.
His subterfuge has been accomplished by simply having the Justice Department automatically grant the required "pre-clearance" to coercive, exclusionary voting laws emanating from the Act's nine suspect southern states. In Georgia, in Texas and in Mississippi, Attorney General Gonzales simply reversed the decisions to withhold clearance made by the career staff of the DOJ's Civil Rights Division. In blessing the Georgia ID card program and Tom Delay's Texas redistricting scheme, Gonzales and the Bush DOJ supported new state laws that would dramatic reduce the participation of black and Hispanic voters.
Unsurprisingly - and perhaps comically - Gonzales one lone high-profile Voting Rights enforcement action came in Mississippi. There, the Bush DOJ took on the African-American head of the Democratic Party in sparsely populated Noxubee County, who, the suit contends, used coercion and intimidation to prevent the white voters from going to the polls.

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Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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