Prosecutor Scandal Is the Beginning of Bush's End

By , BuzzFlash. Posted April 4, 2007.

About a year from now, pundits and instant historians will point back at the firing of the federal prosecutors and say, "That's where the impeachment began."

I'm glad that it began with, or at least around, Alberto.

The attorney general takes an oath to uphold the constitution and execute the law. When controversial matters come up, his role, traditionally, is often to be the guy who says, "We can't do that, it's against the law."

Gonzales took a different approach. He brought the ethics of a corporate lawyer to his office. He took it to be his job to find, or invent, a theory that would allow the administration to go forward. If the theory wouldn't hold up in court, or made little sense, that didn't matter. They could still maintain, with straight faces, that they believed what they were doing, on the advice of the attorney general, was legal and constitutional. If worst came to worst, they'd back off and move on, so long as the profit outweighed the penalty.

The most flagrant example is when Bush, Cheney and Rumsfeld decided they wanted to torture people.

Aside from the moral, practical, and traditional problems with torture, there were legal problems. America's own War Crimes Act and the Geneva Conventions prohibit torture, torture lite, and even real life re-enactments of episodes from the TV show "24."

So Gonzales and his legal team came up with the theory: the Geneva Conventions don't apply to opponents in the War on Terror. Neither does domestic law. Indeed, nothing applies. They invented a category of person who has no rights, even if they're American citizens. Gonzales knew exactly how illegal it was. That's why he wrote a memo that explained, explicitly, that the reason to employ his theory was to "provide a solid defense to any future prosecution."

The administration also wanted to snatch people off the street - usually abroad, but here too -- and not bother with all the legal mumbo jumbo. Annoying. Cumbersome. Too expensive.

Unfortunately, Article 1, Section 9, of the Constitution says, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." Habeas corpus means that if you are arrested or detained, the government has to bring you into the legal system and say why. Without that right, you don't have any other legal rights. You can't defend yourself, you can't call a lawyer, you can't notify your family. You just disappear.

Gonzales came up with the astonishing theory that the Constitution doesn't give people the automatic right to habeas corpus, it only says that if they happen to have it, it can't be taken away.

Gonzales was also the architect of the legal theory that "permits" the NSA -- and now we know the FBI and probably other agencies yet to be discovered -- to spy on U.S. citizens without warrants. He combined two ideas, that the War Powers Act, which Congress unfortunately passed after 9/11, allowed the president to do anything that could be said to be necessary to pursue the War on Terror, and that his authority as commander-in-chief trumped legal niceties such as Article IV of the Bill of Rights: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause ..."

He was not above using such thinking for his own benefit. The Office of Professional Responsibility, a government watchdog group, began an investigation of the NSA program of wiretaps without warrants. Gonzales learned he would be a likely subject of the investigation. He then advised President Bush to deny security clearances to the investigators. Bush did so, which brought the probe to a dead stop.

But that's not why I'm so happy it's starting with Alberto. It's that Gonzales starred in my favorite love-to-hate moment, so far, in the strange fog of madness and deception that fell over the country during this administration. It occurred on February 6, 2006, when he was called before the Senate Judiciary Committee to testify about that NSA program.

Democrats, then in the minority, asked that Gonzales testify under oath. An astonishing little charade was played out. Gonzales got to say he was glad to do so. The chairman at the time, Arlen Specter (R-PA) -- who totally adores the rhetorical high ground of posing to be a tough defender of the Constitution and the rule of law -- stepped in and ruled that it would not be necessary.

It must be acknowledged that not being under oath is a courtesy frequently extended to members of the executive branch. However, Gonzales was being questioned about a program he helped keep secret from Congress, that on the face of it was unconstitutional, and that explicitly evaded the FISA laws. Furthermore, the program had been briefly suspended during the run-up to, and during Gonzales' confirmation hearing, when he did have to testify under oath. Presumably so that when he was asked, in a necessarily general way, if the administration would engage in a program that evaded or broke the laws of the United States, in the name of national security, he could say that the question was a hypothetical and he could avoid answering and thus avoid committing perjury. Shortly after he was confirmed, the program was resumed. Yet Specter insisted that Gonzales, our top law enforcement officer, didn't have to be under oath.

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