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Wednesday, July 6, 2005

Presto! Torture-enabler Gonzales is a moderate!

Stop Torture - Unitarian Universalist Service CommitteeKarl Rove is quite the magician. Efforts by the White House to quiet down the fundamentalists who are clamoring for a culture warrior on the Supreme Court seem focused on two underlying goals. First, the G.O.P. has to preserve the rousability of the radical right — a version of Xeno's Paradox in which the Christianists are always getting closer to and yet never quite achieving their goals, making them a perpetually indignant revenue stream. Giving them what they want would seriously undermine Bush's support among non-fundies, and Rove knows it.

More importantly, however, the White House is intent on convincing the media that Alberto Gonzales is a safe, moderate compromise. He's not. Forget the debate about abortion for a moment; the real issue is torture and the president's "authority" to ignore the law.

Gonzales is the legal architect of the Bush administration's policy of claiming that the Geneva Conventions don't apply to detainees in the so-called war on terror. As White House legal counsel, he provided the rationalizations that emboldened the Pentagon and the C.I.A. to torture detainees. From a constitutional standpoint, Gonzales's offense is his apparent belief that the president can choose to ignore the law. But the law is not disposable in a constitutional republic.

Chris Suellentrop highlighted Gonzales's dangerous legal notion during his confirmation hearings in January:

"Now, as attorney general, would you believe the president has the authority to exercise a commander-in-chief override and immunize acts of torture?" [Sen.] Leahy asks. That's "a hypothetical that's never going to occur," Gonzales says, because we don't torture people. He continues, "This president has said we're not going to engage in torture under any circumstances, and therefore that portion of the opinion was unnecessary and was the reason that we asked that that portion be withdrawn." Translation: Yes, I think the president has the legal authority to immunize acts of torture, but he doesn't want to, so I'm not going to bother with defending the idea.

Pressed for an answer, Gonzales concedes, "I do believe there may come an occasion when the Congress might pass a statute that the president may view as unconstitutional," and therefore the president may ignore it. That's a general statement of principle, Leahy says, but I'm asking a specific question. Can the president immunize torture? Gonzales retreats to the that's-hypothetical-and-it's-not-gonna-happen defense. OK, Leahy says. What about leaders of other countries? Can they immunize torture? I'm not familiar with their laws, Gonzales replies. . . .

Later, it's Sen. Dick Durbin's turn to try to get Gonzales to elucidate his views on the separation of powers. Can the president immunize people from prosecution for torture? Gonzales restates that it's theoretically possible for Congress to pass an unconstitutional law that the president can justifiably ignore. "Has the president ever invoked that authority?" Durbin asks. No, Gonzales says.

Ask yourselves: How comfortable are you with a Supreme Court justice, much less an attorney general, who believes that the president — not the Court — gets to decide when Congress has unconstitutionally restricted his powers? Do you think a president has the right, by virtue of his office, to decide to ignore laws restricting the abuse of captives in war?

Gonzales has no place on the Supreme Court. All Americans who value the Constitution's separation of powers should be extremely wary of "moderates" who defer so comprehensively to the wonder-working power of the president. We're a nation of laws, not of men. Gonzales, Bush's good pal, doesn't seem to believe that.

("G.O.P. Asks Conservative Allies to Cool Rhetoric Over the Court," David D. Kirkpatrick and Carl Hulse, New York Times 7.6.05, reg req'd; "Undiplomatic Immunity," Chris Suellentrop, Slate 1.6.05)

Copyright © 2005 by Philocrites | Posted 6 July 2005 at 9:24 PM

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5 comments:

Lynn Gazis-Sax:

July 7, 2005 01:20 AM | Permalink for this comment

Yeah, I'm totally creeped out by the word that this is supposed to be the moderate candidate that gets liberals sighing with relief. Like we're not supposed to care about torture, as long as we get to keep abortion?

Paul:

July 7, 2005 05:50 AM | Permalink for this comment

Okay who-in your opinion-does belong on the Supreme Court? I ask this as a right of center Unitarian? Can you suggest a few candidates?

fausto:

July 7, 2005 07:08 AM | Permalink for this comment

As correct as Philo is about Gonzales, he was confirmed for AG with a filibuster-proof majority. If Bush is sincere when he talks about about suppressing divisiveness and moving forward quickly, Gonzales may well be his pick. Harry Reid has already publicly stated his non-opposition.

Who do I think would make a strong Republican choice? Arlen Specter, Fred Thompson or Rudy Giuliani.

Philocrites:

July 7, 2005 08:11 AM | Permalink for this comment

Depends on what kind of judicial conservatism you prefer. I find "originalists" and "Constitution in exile" conservatives most troubling -- but George W. Bush doesn't need or want my input in his selection, so I don't think it especially matters.

If Gonzales is nominated, I hope people ask hard questions about the separation of powers. I hope they ask them repeatedly and aggressively. Gonzales and Bush should feel the heat about the government's torture policies. But of course he'll be confirmed.

I do think liberals should read the writing on the wall, however: The days of depending on the courts are over. If we don't build a popular consensus that generates political majorities, we have nowhere to turn.

("So What's the 'Right' Pick?," Jeffrey Rosen, New York Times 7.3.05, reg req'd)

Doug Muder:

July 9, 2005 01:27 AM | Permalink for this comment

The Gonzales-is-a-moderate campaign reminds me of what used to happen whenever there was a change of leadership in the Politburo. You'd always see information from "reliable sources" that the new leader (Andropov, Chernenko, whomever) was secretly not the hard-liner he appeared to be in public. They always claimed he had been working behind the scenes to liberalize the Soviet system. It was never true.

Gonzales is not a moderate. He's just a different kind of conservative than James Dobson, so Dobson's people will oppose him.

Here's my taxonomy of conservatives:
(1) Fundamentalists like Dobson.
(2) Plutocrats whose highest value is to defend property.
(3) Corporatists.
(4) Libertarians.
(5) Free-marketeers.
(6) Communitarians who think that community moral standards trump individual rights.
(7) Fascists who think that the President's commander-in-chief role allows him to ignore all rights and due processes in wartime -- and that the President gets to decide when it's wartime.

The groups both overlap and oppose each other. Scalia, for example, is Communitarian and Plutocratic but anti-Fascist.

In answer to Paul: Let's take for granted that Bush's nominee will be some kind of conservative. I'd be happy with a Libertarian, a Free Marketeer, or a Communitarian. I absolutely don't want a Fascist. Gonzales, in my opinion, is a Fascist.



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