A Cloud Over the Constitution

By Nat Hentoff, Village Voice. Posted December 14, 2004.

The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation's history. These claims put President George W. Bush literally above the law, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time, for any reason that Bush associates with national security ...

— Stuart Taylor Jr., former New York Times Supreme Court reporter, "America's Best Choice?," Legal Times, Nov. 15, 2004

In a scathing lead editorial (Nov. 22), "Mr. Gonzales' Record," The Washington Post challenged the Senate Judiciary Committee, which will soon hold a confirmation hearing on the president's appointment of Alberto Gonzales to be this nation's chief law enforcement officer, the daily protector of the Constitution: "Above all, Mr. Gonzales should answer this question [before the Senate Judiciary Committee]: Why is a lawyer whose opinions have produced such disastrous results for his government—in their practical application, in their effect on U.S. international standing and in their repeated reversal by U.S. courts—qualified to serve as attorney general?"

As I wrote in my last two columns, the editorial summarized some of the disastrous advice from this man without any law enforcement experience, who always tells George W. Bush what he wants to hear: authorization for torture of noncitizen detainees; approval of violations of international law; and the breathtaking assertion that the president, without going to the courts or to Congress, can imprison American citizens indefinitely, without charges, and without access to lawyers.

Actually, The Washington Post's challenge is to the Democrats on the Senate Judiciary Committee. The Republican members will vote, in lockstep, for Gonzales. But I have found out that most, if not all, of the Democrats will also cave in—after harrumphing at Gonzales for some hours.

I know this from an inside source whom I cannot name. I very rarely use blind sources, but there are times when to report on what's actually going on, I have to protect a source. The Democrats on the committee know what I, and others, have been telling you about Gonzales. In their possession, for instance, is a copy of the July/August 2003 Atlantic Monthly article by Alan Berlow that documents how Gonzales, as legal counsel to then Texas governor George W. Bush, sent 56 death row inmates to be executed after giving three-to-seven-page memos on their cases to Bush that rubber-stamped the lethal decision of the notoriously murderous Texas courts.

Even the Democrats' attack dog on the Judiciary Committee, Charles Schumer, has said he prefers Gonzales to John Ashcroft. That's like saying you prefer Torquemada to Attila the Hun. Indeed, the ranking minority member on the committee, Patrick Leahy, has said that with Bush re-elected, if he sent up Attila the Hun to replace Ashcroft, he'd get his way.

The Democrats prefer to hold their fire until the next Supreme Court nominee. As a result, for the next four years, the manipulative Alberto Gonzales will be finding additional ways to expand the Patriot Act, integrate the further surveillance of us all into government data banks, and, as he already has, make the Bush administration the most secretive in American history.

In a recent detailed summary of Gonzales's record as White House counsel, the Reporters Committee for Freedom of the Press (I'm on its steering committee) emphasized: "Alberto Gonzales has been an active defender of what is best described as a quasi-executive privilege, invoked repeatedly by the Bush administration in attempts to keep government information from public scrutiny."

So, as we are abandoned by the Democrats on the Judiciary Committee, what can we do? For one thing, keep in touch with the Web site of the Bill of Rights Defense Committee (bordc.org). It has a continuing record of cities and towns passing resolutions pressuring their members of Congress to pass liberating anti–Patriot Act (and future anti-Gonzales) legislation. (A number of such bills will be reintroduced in the next session of Congress.) And the website includes organizing strategies and useful news reports.

Also, while I have substantial differences with certain American Civil Liberties Union policies and with the quality of some of its top leadership, the ACLU staff is persistently effective in countering, through communication and lawsuits, the administration's subversion of the legacy of Samuel Adams, Thomas Jefferson, Eugene Debs, Bayard Rustin, and other freedom defenders.

The ACLU membership has increased in direct ratio to the ascendancy of Bush, Ashcroft, Rumsfeld, Gonzales, et al. And the more members it gets, the more it can accomplish. I suggest you join the ACLU (the national office is in New York: 125 Broad Street, 18th floor; Attention: Membership Department; NY, NY 10004; 212-549-2585).

Whenever I speak at a school, or at any gathering, I bring the late Supreme Court justice William O. Douglas into the conversation. As a defender of constitutional liberty, he was the direct opposite of Alberto Gonzales. The Constitution and the Bill of Rights, Douglas once wrote to a group of young lawyers, are not self-executing.

He warned: "As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness."

The changes in the air have become much more than slight. The twilight is deepening, but so is the resistance—despite the retreat of the Democrats on the Senate Judiciary Committee. The fatuous Michael Moore will not save us. Only we can. All through our history, dissent and resistance have beaten back the darkness. Tom Paine and Martin Luther King knew that, and like Joe Hill, their lives still resonate.

              

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