The Fight Is On

It says something that the most vigorous opposition to Alberto Gonzales' nomination for U.S. attorney general emanates from recently retired military officers, not the civil rights lobby. It also says something that even as the White House, through a new Justice Department memo, sought to defuse Gonzales's record as the legal godfather of Abu Ghraib and waterboarding, word leaked of an emerging administration plan for lifetime internment of terror suspects, without trial, in a worldwide network of U.S.-built prisons. This is the first attorney general nomination of global consequence, a dimension to which Washington only slowly awakened as Gonzales headed into his testimony before the Senate Judiciary Committee.

From the day he was named by President Bush, Gonzales posed a dilemma for Democrats and civil rights organizations: Is this nominee worth fighting? Conventional wisdom counseled caution: As the first Latino AG nominee, he has a compelling personal history; he would secure easy confirmation from the Republican Senate; and besides, Gonzales is ABA – Anybody But Ashcroft. Democrats (notably New York's Chuck Schumer) immediately signaled their likely acquiescence. For weeks, most leading civil rights groups, with the exception of the defiant Center for Constitutional Rights, limited themselves to toothless calls for "vigorous scrutiny." The best liberals could hope for, went the insiders' whispers, would be to "make a record" that might inhibit a future Gonzales nomination to the Supreme Court.

On the eve of the Gonzales hearings, a different dynamic began to emerge. First the Justice Department published a memo "superseding" the elaborate justification for torture Gonzales himself had commissioned from the Office of Legal Counsel's Jay Bybee: a new memo so patently timed to the hearings that it only made questions for the nominee more compelling, especially since the White House continued to withhold crucial documents detailing Gonzales's role in the torture scandal. Notable, too, was the new memo's overt evasion of the original Bybee document's assertion of unreviewable presidential authority to classify prisoners outside the protections of the Geneva Conventions and torture laws.

Then the intervention of a dozen retired high-ranking military officers – some of them lifelong Republicans – made it clear that this is no ordinary confirmation fight. No domestic Cabinet nominee has ever been charged by generals with having "fostered greater animosity toward the United States, undermined our intelligence gathering efforts and added to the risks facing our troops around the world." These career officers – who take their oaths to the Constitution, not George Bush – believe that Gonzales' legal tactics are wrecking years of post-Vietnam efforts to prevent contemporary My Lais.

It's one thing for the ACLU to criticize Gonzales, quite another when he gets denounced by the very military leadership Republicans have long claimed to stand for. The officers' letter provided covering fire as People for the American Way – until January in the "cautious scrutiny" camp – added its full-throated opposition, and religious leaders began to speak up.

These retired officers (and Human Rights First, which sponsored their press conference) remembered what Democratic pragmatists forgot in the despairing weeks of November: For reasons ranging from ideology to personal malfeasance, seemingly secure Cabinet confirmations can spin wildly out of control when the heat is on – witness John Tower and Zoë Baird. And Gonzales is not universally admired in the Senate Republican Caucus. Lindsey Graham of South Carolina, formerly with the military's legal corps, remains disgusted by Abu Ghraib and the chain of decisions that led to it. Just days before Gonzales's hearing, Sen. Richard Lugar blasted the new White House internment-without-trial plan. (That plan, depending on the existence of authoritarian allies to do our dirty work, suggests just how cynical is the president's "democracy on the march" rhetoric.)

So the fight is joined. Gonzales, it is true, is not a fanatical religious conservative or an orthodox strict constructionist. His record suggests instead an enthusiastic apostle of the imperial executive. "Making a record" in the event of his Supreme Court nomination is at best secondary: The far more immediate danger is the record he will make as attorney general, and the record of defeatism Democrats will establish if they offer anything less than principled opposition. With the Gonzales fight, the Senate – Democrats and Republicans alike – directly confronts issues that have lurked in the background in the Bush years: questions not just of human rights for terrorism suspects worldwide but of a presidency absorbed in its own quest for unrestrained power, both domestic and international.

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