Fire Gonzales or the Whole Junta?

A steady stream of disappointing news from the Justice Department has left the nation increasingly critical of Attorney General Alberto Gonzales. Offering inaccurate congressional testimony while evading questions about U.S. attorneys being fired for political reasons, he has tried in hearings before the Senate Judiciary Committee - but failed in spectacular fashion - to justify his ongoing service. Deputy Attorney General John Comey recently testified about Gonzales attempting to coerce his predecessor into certifying the legality of the unconstitutional and controversial warrantless spying program. And today, Monica Goodling will testify about ideological litmus tests for hiring career prosecutors imposed by the Department under the present Administration. Several the Attorney General's senior aides have resigned in recent weeks, prompting Senator Arlen Specter (R-PA) to exclaim that "it's embarrassing for a professional to work at the Department of Justice today."[1]

But the mounting calls for the Attorney General's resignation, while certainly apt, overlook acts verging on treason by officials at the highest reaches of the Administration, including President Bush and Vice-President Cheney. Gonzales should absolutely be forced out of office - but he should not be alone.

The Attorney General approved the political dismissal of career federal prosecutors, lied to Congress about it, blamed subordinates and then appeared incompetent before the nation. But these are ultimately tips of a far more insidious iceberg. However appalling the scandal of the moment may seem, the abuses committed by Gonzales on behalf of the Bush Administration extend well beyond merely hijacking the Justice Department.

The Attorney General has merely assisted the President and Vice-President in assailing a number of crucial constitutional checks & balances, and evading limits on executive power with shocking nonchalance. As conservatives continue to call for vigilance against international terrorism, it grows increasingly clear that the terror on which Congress, the media and the American public should focus is nothing short of a sustained, wide-ranging assault on the constitutional integrity of our Republic by the leaders of the Executive Branch.

Many of their abuses relate to civil liberties. Before Congress signed away the writ of habeas corpus in the Military Commissions Act of 2006 ("MCA"), the Office of Legal Counsel in the Justice Department played a key role in approving interrogation techniques including torture, and the creation of kangaroo courts to judge Guantanamo detainees. Even after the passage of the MCA, the military commissions operate with neither evidentiary nor substantive rules, rubber-stamping often baseless accusations, lacking any modicum of transparency, and inspiring the ire of judges - including widely respected conservative Douglas Ginsberg, Chief Judge of the U.S. Court of Appeals for the D.C. Circuit - for excluding exculpatory evidence. And torture by U.S. authorities exposed in facilities such as Abu Ghraib, Guantanamo Bay, and once-secret CIA "black sites" blatantly disregards not only Congress' role in the constitutional structure and corresponding constraints on Executive power, but also the Fourth, Fifth, Sixth, and Eighth Amendments, as well as the Geneva Conventions.

Casting an even wider shadow over our cringing democracy, illegal domestic spying continues unchecked, both through the infiltration of domestic activist groups reminiscent of COINTELPRO, as well as historically unprecedented warrantless electronic surveillance. The Justice Department is integral to the first effort, vigorously investigating and prosecuting groups defending environmental rights through means including violence, while conspicuously ignoring right wing groups such as the KKK and radical libertarian militias.

As for the secret surveillance program, the role of Justice Department lawyers unfortunately remains secret...because the Bush Administration denied security clearances to investigators in a successful bid to deliberately derail their examination. Before prompting a public outcry upon its revelation, and inspiring threats by the Administration to prosecute journalists for disclosing the program to the public, the spying program was rejected by former Attorney General John Ashcroft - who is himself an icon for many things, but certainly not privacy among them. It ultimately proceeded anyway, and despite being struck down as unconstitutional by a conscientious trial judge in Detroit who also ruled that "the president has acted, undisputedly, as [the Foreign Intelligence Surveillance Act] forbids," the program continues to operate with still unspecified contours.

More recently, the Justice Department's Inspector General revealed pervasive abuse by the FBI of the "national security letter" process authorized by the PATRIOT Act. In addition to being wielded abusively by overreaching authorities, the statute itself suffers constitutional faults. Gag orders prohibit victims of the national security dragnet from calling public attention to their sometimes political persecution, violating free speech rights. Meanwhile, the Act authorizes searches completely disregarding the privacy interests of its targets, violating at least the Fourth Amendment. The Administration bears responsibility both for proposing and lobbying for the PATRIOT Act, as well as failing to operate within its bounds.

Beyond facilitating the Administration's civil liberties violations, Gonzales has also helped the Bush-Cheney junta violate several Separation of Powers principles meant by the Founders to defend the Republic against the ambitions of overzealous public officials. The presidential signing statements he championed as White House Counsel - first proposed by now-Supreme Court Justice Samuel Alito when working as a right-wing operative in the Reagan Administration - assert exemptions from Congressional mandates with unprecedented frequency and limitless scope.

Similarly derisive of Congress, blanket claims of executive privilege have aimed to maintain the secrecy of documents, communications and even live testimony sought by oversight committees. One theory circulating in Washington suggests that the Attorney General's apparent confusion in his congressional testimony may represent a calculated belligerence, a decision to simply deny Congress access to any meaningful insight about controversial policies and scandals, such as the U.S. Attorney firings or the domestic surveillance program.

And of course, Gonzales has supported the President's assertion of unfettered authority to wage war even over the objections of Congress. This disdain for congressional authority seems particularly poignant given the nation's emphatic rejection of Bush's foreign policy in the 2006 mid-term elections.

But as much as the Attorney General may warrant condemnation for his participation in these schemes, one overarching observation fills any room like a ten-ton elephant: he was not alone. Alberto Gonzales has never been an architect of the Administration's agenda, and leaving his puppeteers in office runs the risk of his eventual successor repeating his errors.

The Vice President's former Chief of Staff was convicted on perjury charges for lying about the Administration's attempts to intimidate early critics of its plan to invade Iraq. Ultimately, "Scooter" Libby's conviction is most significant for confirming that the Administration stands ready & willing to sacrifice scapegoats to evade criticism of senior decision-makers, for whose political fortunes it reserves greater concern than the well-being of either our own country or those we invade at the drop of an imperial hat.

In addition to violating individual rights and limits on the institutional authority of the Executive Branch, the Vice President has been particularly crucial in undermining the transparency on which democracy is based. The precise decisions of the Administration's energy task force - which Cheney convened in 2001 to enact the preferences of oil & gas companies into official government policy - remain secret to this day. Restrictive policies with respect to a host of other issues further undermine transparency: agencies have been instructed to answer requests for information by the media or the public only slowly and narrowly, government scientists have been muzzled for raising concerns about climate change, a covert intelligence agent was publicly revealed and smeared for her husband's politically-charged findings, reporters in the White House press corps are bullied for asking tough questions and journalists who expose unconstitutional Executive acts were threatened with prosecution. Each of these attacks on democracy involve the active, ongoing participation of senior government officials including the Attorney General, but also the President and Vice President.

In this context, political machinations at the Justice Department are hardly surprising, or even particularly significant. Well before the U.S. Attorney dismissals came to light, political appointees had for years been ideologically purging the Department's career staff - especially in the Civil Rights division - to make room for conservative political operatives. And whatever fabrications the Attorney General concocts to confound Congress, they pale in comparison to the broader White House effort in which he has played an integral role.

Alone, each of the Administration's numerous overreaches have threatened to transform the Republic so carefully crafted by our Founders into a warped shadow of democracy. Taken together, they constitute an ongoing subversion even worse than the sum of their parts.

Yet Congress, despite the sea-change mandated by the 2006 elections, remains unwilling to consider Articles of Impeachment for senior officials. By failing to hold the President accountable for the faults of his Administration, Congress continues to abdicate its own constitutional role, laying down on the job at a time when its assertive presence is sorely needed.

Some impeachment proponents focus on the Administration's many policy failures, such as its dreadful misrepresentations promoting the War in Iraq, its subsequently bungled occupation effort, its horrifyingly inadequate disaster recovery effort along the gulf coast after Hurricane Katrina, or its egregious unwillingness to seriously address climate change. While mere policy failure may not rise to the level of the "high crimes and misdemeanors" for which the Founders made impeachment available, some failures may indicate intentional avarice. For instance, the invasion of Iraq was based on false allegations that ultimately appeared a mere pretense for neo-conservative international belligerence. And the flooding and resulting national nightmare in New Orleans reflected a refusal to recognize clear warning signals reported well before the storm. An analysis of either situation - both of which feature the loss of large numbers of lives, but primarily those of dark-skinned people - indicates an institutional racism making them all the more reprehensible.

But in the end, the Administration's policy failures need not serve as the only basis for impeachment proceedings, because the threat to the Republic posed by Executive self-aggrandizement is far more dangerous and worthy of congressional rebuke. Despite all the recent attention on the Attorney General, the nation seems to casually overlook the White House's ongoing assault on the Separation of Powers.

Within the last decade, another Congress pursued the impeachment of President Clinton for merely sexual indiscretion - which carried no implications for any of the numerous constitutional principles repeatedly flaunted by the Bush Administration. Yet Members of the current Congress seem to have grown inured to the constitutional crisis engineered by Bush, Cheney and Gonzales by the mere fact of its repetition.

[1] Dana Milbank, Washington Post, 5/16/07