Deconstructing Alberto

At 17, Jane Doe had her future mapped out: college, career, hopefully marriage and finally, motherhood. She didn't contemplate reaching those milestones in reverse. But in early 2000, the high school senior discovered she was pregnant. Now she struggled with ordering a different set of choices: motherhood, adoption or abortion. No matter which she picked, she later told a Texas judge, she couldn't escape guilt.

Afraid that her parents would abandon her if they found out, she turned to friends and a relative for advice. One relative who had an abortion said she was happy with her decision. So too did a teenage friend.

And she sought out girls who'd had their baby. One single mom told Jane she'd regretted the decision, that she was unprepared for the tough reality of raising a child. Another teen, who married the baby's father at 15, was in a struggling marriage and regretted her choice.

Jane went to Planned Parenthood and talked to a counselor. She searched the Internet for information and, at school she sought the advice of a teacher who counsels pregnant students.

Eleven weeks and a day into the pregnancy, Jane had a sonogram and asked to see the fetus on the video screen because she "considered it her responsibility to do so."

She opted for an abortion but didn't want to wait until she turned 18. Even though she could still have had one by the time she was considered an adult, Jane decided that it would be too late in her pregnancy. The safest procedures, she was told, were done by the 14th week. And instead of notifying her parents of the decision, as Texas law required, she asked a Texas trial judge to sign an order which would give her permission.

With a lawyer at her side, Jane Doe stood before a judge and asked him to grant her request. He asked her to list the benefits of having a baby. The upside, she said, was that she'd have a child. And she added that since she'd never been a mother, she didn't know about the other benefits. She told the court that when she worked with kids as a volunteer, it was a joyful experience.

He asked her about adoption. She'd considered it but said that she couldn't carry a baby to term then give it up. She'd worry that the baby wasn't brought up in the right environment or that the adoptive parents wouldn't provide love and proper care.

At the end of the hearing, the judge denied her request. He determined that she wasn't mature enough or sufficiently informed to make the decision and she didn't understand the "intrinsic benefits of keeping the child or adoption."

Jane appealed but a Texas Court of Appeals sided with the trial judge. And so the case went before the Texas Supreme Court.

But this time, Jane won. With a split 5-4 vote, the state high court granted her application for permission to obtain an abortion on March 10, 2000. In an opinion written and released three months later, the majority felt that, by a preponderance of the evidence, she was both mature and well-informed. The standard of proof had been a key sticking point for the judges and the majority rejected an argument that the court could impose a higher level of proof than the law explicitly stated.

One of the judges allowing the abortion to proceed was Alberto Gonzales, who was new to the bench. Not only did Gonzales agree with the majority, he wrote a concurring opinion which focused not on the philosophical debate surrounding abortion – but on the role of a judge. "[T]he duty of a judge is to follow the law as written by the Legislature," he wrote. "Our role as judges requires that we put aside our own personal views of what we might like to see enacted...."

He chided the dissenting judges, calling their efforts to create hurdles that weren't written into the law "an unconscionable act of judicial activism."

"As a judge, I hold the right of parents to protect and guide the education, safety, health and development of their children as one of the most important rights in our society. But I cannot rewrite the statute...."

What he seemed to be saying was that while he thought parents should be the ones in control, the law is the law.

"This decision demonstrates the Court's determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will...."

It wouldn't be the last time that Gonzales would distinguish between his official role and his private views.

As the lawyer to Gov. George W. Bush in the mid-90s and as White House counsel to Bush in recent years, Gonzales has been a loyal trooper, giving his boss what he wanted – whether it was clemency memos justifying the death penalty in cases in Texas, or White House memos justifying the torture of prisoners at Guantanamo. He's explained his role to mean giving Bush what he needs, even if "there may be things the president wants that I personally disagree with."

Gonzales is not only waiting to be confirmed as Bush's nominee to be U.S. Attorney General, the nation's top law enforcement officer, but given the likelihood of vacancies in the U.S. Supreme Court coming up, Gonzales is also being talked about as a leading candidate for the nation's highest court.

Central to any assessment of Gonzales is the question of what he perceives to be his role. Does Gonzales believe that the Attorney General must give the President what he wants or does he believe that the AG must uphold "the public will" as it is written into the nation's laws? And if he is to be considered for the Supreme Court, does he still believe that a judge must set aside his "personal ideology," or have his years in the Bush White House changed his views on that as well?

"Mi Abogado"

Born on August 4, 1955, Gonzales was the second in a string of eight children born to Roman Catholic and Mexican migrant farm workers. His alcoholic father left farm work in favor of a construction job in Houston. There, Gonzales grew up in a two-bedroom house with no running water. Even under the less-than-ideal conditions, he thrived, becoming a high school honors student.

In 1973, the year the Texas Air National Guard released George Bush from service eight months early to go to Harvard Business School, and the year that the United States agreed to begin withdrawing forces from Vietnam, Alberto Gonzales joined the Air Force. In 1975, he was off to the Air Force Academy in Colorado Springs. Two years later, he transferred to Rice University and received a political science degree. In 1979, he went to Harvard Law School, graduating in 1982.

Soon he landed a job with the blue stocking Houston law firm of Vinson & Elkins. Founded in 1917, the firm thrived on the same thing that the rest of Texas was gorging itself on – oil. It was a firm that represented energy giants like Enron. And it was at Vinson & Elkins that Gonzales became acquainted with Republicans and a conservative worldview. Around that time, he divorced his first wife, later re-married and is now the father of three daughters. He rose from associate to partner.

Then in 1994, Texas Governor George W. Bush named Gonzales general counsel to the governor. The two men forged a relationship that is still going strong. And it has earned Gonzales the name mi abogado – my lawyer – from Bush.

From 1995 to 1997, Gonzales also wrote clemency memos, the documents that went to the Governor which would help him decide whether a Death Row inmate would get an executive reprieve. And it was during Bush's six-year tenure as governor that 150 men and two women were executed in Texas. And only once during those six years was a clemency request granted.

But Gonzales memos were shockingly inadequate, according to "The Texas Clemency Memos," a 2003 Atlantic Monthly article written by Alan Berlow. Gonzales "repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence," Berlow wrote.

He cited the case of Terry Washington, a 33-year-old man who had been savagely beaten with "whips, leather hoses, extensions cords, wire hangers and fan belts as a child." Though he was an adult, he communicated at a 7-year-old's level. At trial, his lawyer failed to bring in a mental health expert. And Gonzales' clemency memo focused on the horrific criminal details. It made no mention of mental retardation. Washington was eventually executed.

In 1997, Bush appointed Gonzales as Texas Secretary of State. In 1999, Bush appointed him to a fill a vacancy on the Texas Supreme Court. In 2000, Gonzales won re-election and his campaign coffers were fattened by a financial contribution from his old law firm's client, Enron. It was at the Texas Supreme Court that Gonzales rendered his decision in Jane Doe's case. It was that concurring opinion that Justice Nathan Hecht blasted in the case. In his dissent, Hecht wrote: "I cannot recall ever having seen a court or its members so abject in apologizing for their decision or so profuse in proclaiming their own integrity as this Court is today."

And singling out Gonzales' statements and his calls against judicial activism, Hecht wrote, "Surely they know that remonstrances like these do not allay doubts but only exacerbate them. 'The lady doth protest too much,'" Hecht wrote quoting Shakespeare's Hamlet.

The critics weren't confined to the courthouse. In 2001, when Gonzales was first rumored to be a U.S. Supreme Court contender, the conservative journal Human Events called such a move "an uncharacteristic blunder for Bush – and could permanently mar his presidency."

And so it is with a sigh of relief that some conservatives greeted Gonzales' nomination to succeed Ashcroft instead of getting the nod for a possible Supreme Court bid.

But not all conservatives were happy. In an article posted on last month, just after Bush announced Gonzales as his nominee to succeed Ashcroft, American Life League's President Judie Brown sharply criticized it and asked him to "just say no to Gonzales and his unjust views."

She did so because of the Texas Jane Doe case as well as a 2001 interview with the Los Angeles Times in which he maintained that litmus tests and personal feelings were irrelevant in order for a judge to make a decision.

Brown said, "Gonzales' position is clear: The personhood of the pre-born human being is secondary to technical aspects of the law...."

"Why is President Bush betraying the babies?" she asked. "Justice begins with protecting the most vulnerable in our midst."

The White House Years

After George Bush was elected president, Gonzales shed his black robe and once again assumed the role of Bush's lawyer.

He defined that role in an interview with the Houston Chronicle: "You have to remember in my current job, I am an advocate for a client who has an agenda. And my job is to make sure the president has the tools he needs to pursue the agenda. So there may be some things the president wants that I personally disagree with." But, he added, "I think those instances are rare."

It was in the role of representing "a client with an agenda" that critics and the courts say that his zealous advocacy went much too far.

It was Gonzales who wrote the now-controversial White House memo, dated January 25, 2002, which concluded that the Geneva Convention's Treatment of Prisoners of War didn't apply to the conflict with Al Qaeda and the Taliban. Referring to Bush's war on terrorism, Gonzales wrote: "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions...."

Therefore, prisoner of war protocols and protections, including bans on humiliating or torturing captives, didn't apply to the detainees. By refusing to apply the Geneva Convention rules, Gonzales helped pave the way, critics say, for abusive treatment of enemy detainees.

The memo also noted a secondary benefit of carving out an exception to the Geneva Convention rules: U.S. officials would not run the risk of being prosecuted under the War Crimes Act, a federal law that makes any "grave breach" of the Geneva Convention, a crime punishable by the death penalty. "[I]t is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges based on [the War Crimes Act]," Gonzales wrote. "Your determination would create a reasonable basis in the law that [the War Crimes Act] does not apply, which would provide a solid defense to any future prosecution."

The memo reveals something else: A clash within the administration. Secretary of State Colin Powell opposed throwing the Geneva Convention out the window, favored treating the "detainees" as prisoners of war. The Secretary of State's legal adviser, in contrast with Gonzales, agreed. But it was Gonzales' views that prevailed.

According to a report on the Gonzales nomination prepared by the Alliance for Justice, a progressive nonprofit that promotes an independent judiciary, the Geneva Convention memo, combined with legal memos from the Justice Department and the Department of Defense, "laid the groundwork for abusive interrogation of detainees not only in Afghanistan, but also in Iraq and Guantanamo Bay."

And it was Gonzales, in 2001, who prepared the military order signed by the president which stated that non-citizens would be tried by military commissions. The order did not include provisions for due process rights including a right to a lawyer, to a fair trial, or access to evidence.

The military commissions were challenged on constitutional grounds. And in June 2004, the Supreme Court concluded that enemy combatants held at Guantanamo Bay could file habeas corpus claims in federal court challenging their detention. And in Hamdi v. Rumsfeld, the Supreme Court ruled that a citizen held as an enemy combatant could challenge his detention. Justice Sandra Day O'Connor wrote that the military commission approach "serves only to condense power into a single branch of government" and that "a state of war is not a blank check when it comes to the rights of the Nation's citizens."

And on Nov. 8, a federal judge in Washington, D.C. stopped pre-trial proceedings in a military commission's case against a driver and bodyguard of Osama Bin Laden. The judge ruled that the military commissions in Guantanamo Bay violated the U.S. Constitution and the Geneva Convention.

Gonzales has also come under fire for devising ways to help the Bush administration erect a wall that keeps in secrets. He fought demands for Vice President Dick Cheney's Energy Task Force memos and calls for National Security Advisor Condoleezza Rice to testify before the bi-partisan National Commission on Terrorist Attacks. According to an evaluation of Gonzales prepared by The Reporter's Committee for Freedom of the Press, he also "has played a key role in keeping presidential records out of the public eye and asked for several extensions to deadlines for turning over papers of past presidents."

But he didn't always fall lock-step with the administration. According to the Washington Post, Gonzales clashed with John Ashcroft and Solicitor General Theodore Olson over the administration's stance on affirmative action in a University of Michigan admissions case. "Gonzales argued fiercely that the administration should not take a hard-line position in favor of the white students who were claiming that the school had made them victims of 'reverse discrimination.'"

Law(yer) of the Land?
But it is Gonzales' work on the two "Ts" – terrorism and torture – as well as the clemency memos from his Texas years, that have garnered sharp criticism from human rights and progressive groups. As an attorney general nominee, Human Rights Watch called Gonzales a "poor choice." In addition, a coalition of civil rights groups including the ACLU, the NAACP, Amnesty International, People for the American Way and NOW Legal Defense & Education Fund, expressed "serious concern" with Gonzales nomination. However, the coalition, Leadership Conference on Civil Rights, stopped short of outright opposing his nomination.

Presumably, while Gonzales' record is worrisome, he is no John Ashcroft.

Elliott Mincberg, vice president and legal director for People for the American Way, finds many of Gonzales's positions "troubling." One issue, Mincberg says, is whether Gonzales understands "that his role as Attorney General is not to be counselor to the President or Attorney General for President Bush, he's Attorney General of the United States."

"I think it's extremely important that at hearings and in other conversations with Senators, he shows a significant appreciation of that difference in role, of the different obligations and responsibilities he has, and his willingness and ability to carry them out fairly even when, occasionally, it might bump up against political interests of the President," Mincberg says.

And the rumor still persists that the Attorney General post is just a stepping stone to the U.S. Supreme Court; that this confirmation process will pave a path to the Supreme Court.

"Senator Feingold made it very clear when he voted to confirm John Ashcroft as attorney general, that he applies a very, very different standard to the third branch of the government," Mincberg says. "And I expect that Senators would very much adhere to that position and make it clear that the ability to get confirmed as attorney general is very different than getting confirmed as a member of the Supreme Court."

Also holding him to a different standard – possibly even blocking the path – will be religious conservatives who write about him, if not with downright hostility, then at least abject suspicion. And it all goes back to Jane Doe.

According to the article in Human Events, Gonzales "is a judicial activist of the worst sort. His life story may recall Clarence Thomas, but his judicial mindset recalls David Souter."

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