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Beinhart's Body Politic



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 that 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 that 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 an American citizen. 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 US citizens without warrants.

The Justice Department’s own Office of Professional Responsibility began an investigation of the NSA wiretaps without warrants program in January. Gonzales learned he would be a likely subject of the investigation. He subsequently advised President Bush to deny security clearances to the investigators, which Bush then did, effectively halting the probe.

But all that's not the reason I'm so happy it's Alberto.


My favorite love-to-hate moment, so far, of the strange fog of madness and deception that has fallen over the country during this administration, occurred on February 6, 2006, when Gonzales was called before the Senate Judiciary Committee to testify about that NSA program.

Minority Democrats asked that Gonzales testify under oath.

Then an astonishing little charade was played. Gonzales got to say he was glad to testify under oath. Arlen Specter (R-PA) who loves to pose as 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 that had been keep secret from Congress, that on the face of it was unconstitutional, and that explicitly evaded the Foreign Intelligence Surveillance Act (FISA). Furthermore, the program had been briefly suspended during the run-up to, and during, Gonzales’s confirmation hearing, when he would be 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 hypothetical and he could avoid answering and thus avoid committing perjury. Once he was confirmed, the program was resumed.

Yet Specter insisted that Gonzales, our top law enforcement officer, didn’t have to be under oath.

Recently, the administration fired eight federal prosecutors. Technically, and legally, they could do so. Although it’s a patronage position, federal prosecutors are so powerful and can do so much damage, it has become customary to expect them to be completely professional and nonpartisan. This standard is maintained because the Senate, where minority senators can block an appointment, must consent to their appointments.

The Justice Department said they were being fired over performance issues. But most of them had been rated very highly. Then e-mails turned up that said they were being fired for not being sufficiently loyal Bushies and for not pursuing “voter fraud” cases vigorously enough. “Voter fraud,” is Bushspeak for disenfranchising minority voters. A process that got him close enough to steal Florida in 2000, and won him Ohio in 2004, which is why it was a national priority for the Republican Party. Then Gonzales lied about who originated the process (he laid it off on Harriet Miers) and lied that about his knowledge of it, and Bush’s and Rove’s.

But now the Democrats control the Senate. Patrick Leahy (D-VT) is the chairman of the Judiciary Committee. Gonzales has been called to testify under oath. So have others. Subpoenas have already been issued. That testimony will lead to more subpoenas.

The trail of testimony will point directly to the Oval Office.

At some point, the White House will claim executive privilege and try to block the testimony.

It is possible that the administration will survive this particular investigation. But it will set a style and a tone, that will not permit them to slow drag and stonewall through the next one coming up and the one after that.

Either way, the process will lead to impeachment. And it’s right that it started with Alberto.


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