Over Democrats' Opposition,
Senate Confirms Gonzales as Attorney General

By Jesse J. Holland
The Associated Press
New York Lawyer
February 4, 2005

Alberto Gonzales won Senate confirmation Thursday as attorney general despite Democratic accusations that he helped formulate White House policies that led to overseas prisoner abuse and was too beholden to President Bush to be the nation's top law enforcement official.

The Senate voted 60-36 to put the first Hispanic ever into the job, with all of the "no" votes coming from Democrats. Last week, 13 Democrats voted against Secretary of State Condoleezza Rice's confirmation.

Gonzales will replace John Ashcroft, who won more Democratic support four years ago despite his more contentious stances on several issues. Eight Democrats voted for Ashcroft, while six voted for Gonzales: Joseph Lieberman of Connecticut, Ken Salazar of Colorado, Mary Landrieu of Louisiana, Bill Nelson of Florida, Ben Nelson of Nebraska and Mark Pryor of Arkansas.

Republicans and some Democrats praised Gonzales' life story: the grandson of Mexican immigrants who worked his way up to being President Bush's top lawyer in the White House.

Sen. Mel Martinez, R-Fla., the first Cuban-American senator, even broke with Senate tradition and praised Gonzales in Spanish on the Senate floor on Wednesday. "This is a breakthrough of incredible magnitude for Hispanic-Americans," he said in English.

Democrats praised Gonzales as well, but many said they couldn't look past his participation in administration policies they said had led to abuses that occurred in Iraq, Afghanistan and Guantanamo Bay, Cuba. They also complained that he refused to answer their questions on how those policies were created inside the White House.

"Mr. Gonzales was at the heart of the Bush administration's notorious decision to authorize our forces to commit flagrant acts of torture in the interrogation of detainees," said Sen. Edward Kennedy, D-Mass.

At first, many Democrats had joined Republicans in praising the former state judge who traveled with Bush to Washington after the president's 2000 victory.

"When Mr. Gonzales was nominated several weeks ago, I didn't know a single member of this body, Republican or Democrat, who had expressed any intention to vote against this nominee," said Christopher Dodd, D-Conn.

But some Democrats turned against him after he sidestepped questions on what advice he gave Bush and other administration officials on the interrogation methods that could be used on suspected terrorists or witnesses.

Some Democrats contended that Gonzales' January 2002 memo as White House counsel led to the abuse of prisoners in Iraq and Afghanistan.

Pressed on the issue, Gonzales defended language in which he labeled as "quaint" some of the Geneva Conventions' human rights protections for prisoners of war and said they did not extend to al-Qaida and other suspected terrorists.

But he also declared, "Torture and abuse will not be tolerated by this administration." He told senators that, as attorney general, he would "ensure the Department of Justice aggressively pursues those responsible for such abhorrent actions."

Democrats also expressed concern that Gonzales was too much of a Bush loyalist.

"He was so circumspect in his answers, so allied with the president's position on every single issue, there was almost an eagerness to say, 'I'm going to do exactly what the president wants,' that I worry Judge Gonzales will be too willing to toe the party line," said Sen. Charles Schumer, D-N.Y.

Gonzales shouldn't be a scapegoat for what happened overseas, Republicans said. They also insinuated that the Democrats wanted a big vote against Gonzales to keep Bush from making him the first Hispanic Supreme Court nominee if a position comes open.

"Here is a good man who has demonstrated tremendous ability through his life," said Sen. Tom Coburn, R-Okla. "The fact is, politics is getting in the way of his confirmation."

Democrats argued that they had a right to closely question all nominees.

"I think it is a mistake for this chamber to allow the race card of being Hispanic to be used to destroy or erode the institutions that we have here," said Sen. Salazar, a Colorado Democrat and one of Gonzales' supporters.

http://www.nylawyer.com/news/05/02/020405n.html

Gonzales Cool During Dem Grilling

By Ian Bishop
New York Post
January 7, 2005

WASHINGTON — U.S. attorney-general nominee Alberto Gonzales fended off Democrats during his confirmation hearing yesterday — and brushed aside Sen. Charles Schumer's insinuation that he'll be the next Supreme Court pick.

Schumer used the session to probe Gonzales' constitutional interpretation on a host of legal issues, prompting Gonzales to say, "Let me make it clear, I am not a candidate for the Supreme Court."

"Just in case it happens, one standard is different than the other," said Schumer, suggesting support for Gonzales' nomination as attorney general would not necessarily translate into backing for him if he's nominated to the high court, a move many expect eventually from President Bush.

Gonzales, who would be the nation's first Hispanic attorney general, has come under attack from Dems over his role in crafting the Bush administration's treatment of terror suspects.

The first question of the day, from Sen. Arlen Specter (R-Pa.), was the most direct: "Do you approve of torture?"

"Absolutely not, senator," Gonzales replied.

Asked about the torture scandal at Iraq's Abu Ghraib prison, Gonzales said he was "sickened and outraged by those photos."

Torture Controversy Builds Prior to Gonzales Hearings

By Jesse J. Holland
The Associated Press
New York Lawyer
January 4, 2005

Attorney General nominee Alberto Gonzales' confirmation hearing this week may become more contentious because the White House has refused to provide copies of his memos on the questioning of terror suspects.

"We go into the hearing with some knowledge of what has occurred because of press reports or leaks but without the hard evidence that will either exonerate or implicate Judge Gonzales in this policy," complained Sen. Richard Durbin of Illinois, the Senate's No. 2 Democrat, on Monday.

Durbin and other Democrats plan to question Gonzales on his involvement in the crafting of policies concerning questioning -- policies that the Justice Department has backed away from.

Still, the issue probably won't be enough to stop Republicans from confirming Gonzales as the first Hispanic attorney general. Republicans hold 55 seats in the new Senate, while Democrats control 44 seats and there is a Democratic-leaning independent.

The Democrats have not yet decided whether to try to block Gonzales' confirmation.

"I think the hearing will be contentious, but in the end Judge Gonzales will be confirmed because he deserves to be confirmed," said Sen. John Cornyn, R-Texas, who will introduce Gonzales at the confirmation hearing.

The Justice Department in 2002 asserted that President Bush's wartime powers superseded anti-torture laws and treaties.

Gonzales, while at the White House, wrote similar memos.

Durbin, who sits on the Judiciary Committee, says the White House has refused to give those memos to Democrats so they can determine exactly how the policies were crafted.

"We asked them to produce the memos that they have and can release that were given to Judge Gonzales or were generated by him, and so far they have not claimed executive privilege but have refused to produce this documentation," Durbin said.

The Justice memos have since been disavowed and the White House says the United States has always operated under the spirit of the Geneva Conventions that prohibit violence, torture and humiliating treatment.

But critics say the original documents set up a legal framework that led to abuses at the Abu Ghraib prison in Iraq, in Afghanistan and at the U.S. prison camp for terror suspects at Guantanamo Bay, Cuba.

"What they're trying to do is continue their attacks on President Bush because of his policies since 9/11 that the people didn't buy on Nov. 2," Cornyn said. "They also are trying to muddy the water to make it harder for the president to nominate him for the Supreme Court later on."

On New Year's Eve, the Justice Department made public a new policy backing off those memos.

"The fact that officials in this administration's own Justice Department felt compelled to repudiate an earlier torture memo approved by Mr. Gonzales should itself be sufficient to persuade the senators that he is not fit to be the top law enforcement official in the land," said Ron Daniels, executive director of the Center for Constitutional Rights.

Miguel Estrada, nominated in May 2001 for a lifetime seat on the U.S. Court of Appeals for the District of Columbia -- long considered a steppingstone to the U.S. Supreme Court -- also got caught up in a memo struggle with Democrats. They wanted copies of memos Estrada wrote while working for the solicitor general's office at the Justice Department, saying those documents would reveal how Estrada thinks.

The Justice Department refused to release them.

Democrats ended up filibustering Estrada, who withdrew his nomination.

"I don't want to jump to that conclusion," said Durbin when asked if the same could happen to Gonzales. "I hope that Judge Gonzales will be very open with us and we can have an up or down vote on the merits."

Without a filibuster, the Democrats will not have enough votes to stop Gonzales.

But Anthony Romero, executive director of the American Civil Liberties Union, said, "The Senate has a duty not to soft-pedal in its questioning."

   Inside Man - The New Attorney General Alberto Gonzales

Vanessa Blum
Legal Times
11-16-2004

Whitewater drowned Clinton. Iran-Contra clipped Reagan. And Watergate slammed Nixon.

In two decades, presidential second terms haven't escaped a major scandal. Last week, the newly re-elected President George W. Bush picked his new attorney general, the man who would be entrusted to investigate any second-term administration misdeeds.

Alberto Gonzales, however, seems to have been chosen more for his closeness to the president than for anything else. The current White House counsel has no law enforcement experience.

Asked to describe the 49-year-old Gonzales, one former Bush administration official said simply, "His most important quality is his complete loyalty to the president. That is his primary characteristic. Everything he does is informed by this loyalty."

That loyalty, however, could have drawbacks. If he is confirmed as attorney general, Gonzales may be called on to oversee investigations into members of his own administration, an awkward task for a famously dedicated aide.

The Justice Department is already embroiled in several politically charged investigations, including a probe into the leak of a Central Intelligence Agency operative's name and an inquiry into alleged fraud at the Halliburton Corp., the energy giant formerly headed by Vice President Dick Cheney. Gonzales' close relationship with the president could compromise the Justice Department's ability to be seen as fair and impartial. In addition, questions surrounding the role of the White House -- and Gonzales -- in authorizing harsh treatment of prisoners in the war on terror will persist.

Not surprisingly, those who believe the Justice Department should operate at arm's length from the president view Gonzales with suspicion.

"The White House counsel is supposed to be a close personal adviser to the president. The attorney general is not," says Elliot Mincberg, general counsel for People for the American Way, a liberal interest group.

Legal experts say the demise of the independent counsel statute in 1999 heightens the potential for conflicts by eliminating an avenue for criminal investigations outside the control of the attorney general. With Republicans also in control of the legislative branch, it is unlikely that Congress will step in to provide vigorous oversight. Also, The New York Times reported last week that the appointment of Gonzales may be a prelude to his ultimate nomination to the Supreme Court. That possibility could make him think twice before alienating the White House.

"I think there could be serious appearance problems," says Charles Tiefer, a professor at the University of Baltimore School of Law. "If there is a question of a potential crime at the White House, it's going to be a personal call by Gonzales."

Under the current setup, cases that present conflicts of interest are handed over to a special prosecutor chosen by and answerable to the attorney general, instead of being handled by an outside lawyer named by federal judges, as the independent counsel statute required.
Because the special prosecutor is an executive branch employee, the investigation is susceptible to political pressure and manipulation, as evidenced when President Richard Nixon ordered then-Attorney General Elliot Richardson to fire special counsel Archibald Cox. Although Richardson resigned rather than comply, Cox was ultimately fired by Solicitor General Robert Bork in the infamous October 1973 Saturday Night Massacre in the early days of the Watergate scandal.

The friendship between Bush and Gonzales goes back a decade, to 1995, when Bush was serving as Texas governor and Gonzales provided him with legal advice.

In 1997, Bush named Gonzales Texas secretary of state, and the next year, he appointed Gonzales to the Texas Supreme Court.

In 2000, Bush brought Gonzales with him to Washington, and Gonzales has been the president's top lawyer ever since.

Supporters say Gonzales' personal relationship with the president is no cause for concern.

Former Associate White House Counsel Bradford Berenson says he doesn't believe Gonzales would let partisan political calculations impact a criminal investigation.

"If there is one thing the White House counsel learns in his job, it's where the line of propriety is," says Berenson, a partner in the D.C. office of Sidley Austin Brown & Wood.

Among those considered candidates for the soon-to-be vacant White House counsel post are current deputy David Leitch, a former partner at D.C.'s Hogan & Hartson; White House aide Brett Kavanaugh, a pending nominee to the U.S. Court of Appeals for the D.C. Circuit; and Associate Attorney General Robert McCallum, who attended Yale University with Bush.

CLOSE TIES

Gonzales is hardly the first attorney general pick to have close ties to the president. John F. Kennedy famously selected his brother and campaign manager, Robert Kennedy, for the post in 1961.

When Nixon was elected in 1968, he installed his campaign manager and confidant, John Mitchell. Mitchell resigned as attorney general in 1972 to head the infamous Committee to Re-Elect the President, which orchestrated the Watergate break-in. He ultimately served 19 months in a federal penitentiary for his role in its cover-up.

In the aftermath of Watergate, Congress passed a series of reforms to prevent similar scandals, including the independent counsel statute. But a newfound desire for clean government did not end the tradition of presidents appointing close confidants to head the Justice Department.

Ronald Reagan tapped his personal attorney, William French Smith, to run the department during his first term and selected White House lawyer and longtime aide Edwin Meese III to serve as AG for his second term. Meese narrowly survived two independent counsel investigations and was drummed out of office amid scandal in 1988.

But despite his close relationship with Reagan, Meese made the call to trigger an independent counsel investigation into the Iran-Contra affair. Meese, now a scholar at the Heritage Foundation, did not return a call seeking comment.

Following Meese's resignation, Reagan nominated former Pennsylvania Gov. Richard Thornburgh to serve as attorney general. Thornburgh was kept on by President George H.W. Bush and was widely credited with restoring order and integrity to the Justice Department.

"At certain times in history, there has been a demand for impeccable credentials. Other times, it's remarkable how often someone becomes attorney general on the basis of a personal relationship with the president," says Louis Fisher, a senior specialist in separation of powers with the Congressional Research Service.

President Bill Clinton also selected someone for the AG post with whom he had no personal ties: Janet Reno, a no-nonsense Florida prosecutor. It was a decision that would have major consequences for his two-term presidency.

In May 1994, Reno sought the appointment of an independent counsel to investigate the Clintons' involvement in a suspect Arkansas land deal. The probe was later handed off to former Solicitor General and D.C. Circuit Judge Kenneth Starr and expanded into a sprawling and largely unchecked investigation that ultimately led to an impeachment trial in the Senate.

In his autobiography, "My Life, "Clinton calls his decision to support Reno's call for an independent counsel -- against the advice of his personal lawyers -- "the worst presidential decision I ever made."

"Attorney General Reno was not in any way, shape, or form a member of the Clinton team," says Larry Sabato, director of the University of Virginia's Center for Politics. "She was totally unresponsive in many cases to the desires of the president and his inner circle. The Clinton people almost felt they were dealing with an antagonistic alien force within their own administration."

Says Beth Nolan, who was White House counsel under Clinton: "I think President Clinton picked Janet Reno because she was known to be tough, fair-minded and independent. That's what he picked and that's what he got."

RAISING THE PROFILE

Gonzales' nomination came one day after Attorney General John Ashcroft publicly indicated that he would step down. Ashcroft was a polarizing member of the Bush Cabinet, but unlike Gonzales, he was not perceived as beholden to the president. Instead, Ashcroft -- a former Missouri senator -- was treated as an outsider.

During his tenure, concerns raised by the Justice Department were often overshadowed by Pentagon priorities. For instance, Ashcroft privately opposed a Pentagon policy denying counsel indefinitely to U.S. citizens who were held as enemy combatants, but failed to persuade the White House to adopt a more tempered position.

Gonzales' access to the president may make him a stronger advocate for the institutional interests of the Justice Department than Ashcroft. D.C. lawyer Bruce Fein, who held Justice Department posts during three presidential administrations, says that would be a good thing.

"The problem with the last attorneys general is that they were basically frozen out of critical decisions," Fein says. "You've got to have that level of trust, otherwise the attorney general isn't there to influence major decisions."

But to critics inflamed by the administration's positions on issues related to the war on terror, there has never been a greater need for independence and impartiality at the Justice Department. Questions about Gonzales' role in crafting policies for the detention and interrogation of prisoners are likely to dominate Gonzales' confirmation hearings.

In January 2002, Gonzales wrote a memo calling provisions of the Geneva Conventions "quaint" and recommending that the conventions not be applied to captured Taliban and al-Qaida members.

Gonzales also requested a legal opinion from the Justice Department's Office of Legal Counsel that seemed to condone the use of torture. Critics say the internal memos contributed to a lawless culture that led to the abuse of prisoners at Abu Ghraib and illustrate the president's need for independent legal advice.

"We just had an example with the legal opinions on harsh treatment of detainees of how the president might be better served by counsel that made him aware of the consequences and downsides of a position that initially looks politically convenient," says the University of Baltimore's Tiefer.

As a Cabinet member, the attorney general should be responsive to the wishes and priorities of the president.

"The real question," says professor Akhil Reed Amar of Yale University Law School, "is whether we should try to develop a tradition that this office should go to someone who has a certain autonomy and distance."

[Index to Articles]