The Real Gonzales Problem

When Alberto Gonzales steps down as U.S. Attorney General next month, he will leave behind a Justice Department tainted by scandal, depleted of career professionals, and backpedaling furiously from a host of extralegal counterterrorism policies so internationally deplored that one may fairly ask whether they have done more to aid the cause of radical Islamic terrorism than to prevent it. Gonzales, of course, cannot shoulder all of the responsibility for this state of affairs. He has been a poster child for the more systemic failing of this administration -- its inability to recognize a difference in this country between politics and law. Unfortunately, if Gonzales' tenure as attorney general is any indication, that larger defect seems likely to survive his departure.

It may seem quaint in today's post-Bush-vs.-Gore world to insist upon the notion that the legal system and its officers should remain at least somewhat independent from politics. Such separation has always been uneasy in this country, as a host of Supreme Court opinions from before the Civil War and since well prove. The attorney general can claim a particularly difficult position, as he may be variously expected both to report to and remain independent of the president who hired him. Yet cling to the so-called "semi-autonomy of law" we have, and must. Without it, there is little left of the related idea that the law can (at least sometimes) constrain the exercise of official power – that "government of laws and not of men" idea the Constitution's framers were so taken with some centuries ago.

Yet what most distinguishes Mr. Gonzales' tenure is a series of decisions that seem to fly in the face of this principle. The firing of U.S. attorneys is only the most recent example. And it is important to note there are reasonable arguments that U.S. attorneys should broadly respect the policy priorities an administration establishes in selecting how to allocate limited prosecutorial resources. This is of course quite different from what Mr. Gonzales apparently authorized -- firing based not on policy choices but on partisan affiliation, or as best as may be discerned, the partisan recommendations of White House political staff.

But whatever damage was done by the firings themselves was badly compounded by Mr. Gonzales' staggering, repeated refusals to identify and explain the facts of what happened to Congress. Congressional oversight, essentially absent on any matter from 2001 to 2006, is one of the very few mechanisms there is for making the government-of-laws promise real. If not that, what could one ever do if it became clear that the president, the Secretary of Defense, or another senior official was violating the law?

As it turned out, the answer for Mr. Gonzales wasn't that nothing could be done. It was closer to "I don't understand the question." The famous "torture memo," which Mr. Gonzales solicited from the Justice Department while he was White House counsel, did more than just define torture so narrowly as to exclude significant parts of the brutality Saddam Hussein had inflicted on his own people. It concluded that it would be unconstitutional to enforce the federal criminal law banning torture against the president or his agents. In any case, as Gonzales argued in his 2005 confirmation testimony, since neither international law banning torture nor the U.S. Constitution applies to U.S. operations overseas -- and since it is entirely up to the president where to hold those captured in the "war on terror" -- there really wasn't any law one need worry about the president or his subordinates violating.

This worldview was well in place when the story finally broke that the administration had been domestically wiretapping phones without obeying the law Congress had passed governing foreign intelligence surveillance. The law at the time made it a crime, punishable by up to five years in prison, to conduct such surveillance, except as "authorized by and conducted pursuant to a search warrant or court order."

It remains to be seen what consequences will finally emerge from the exposure of the surveillance program. Judging by Mr. Gonzales' less than forthcoming testimony to Congress on the topic, he thought he'd said all he needed to say in his confirmation hearings: "[T]his president is not -- I -- it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes." More simply, it's not the administration's policy to violate the law.

Here's the thing. No administration gets to make a "policy" decision about whether or not it is going to follow the law. Legal constraints aren't like budgetary constraints. Budget priorities may differ radically, administration to administration; the choices are fundamentally discretionary and, appropriately, a function of political preference. Legal rules are not so discretionary. Obeying the law in this country -- whether it is law about wiretapping or congressional testimony or the treatment of detainees -- isn't about strategic political calculation. It's about obeying the law. Even as the nation's chief law enforcement officer, Gonzales never seemed to quite buy that idea. We must hope that his successor does.