More on A.G. Gonzales

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Carter: Loyal to a Fault?

Should Gonzales be Attorney General?

John D. Huston and Heather Mac Donald debate.

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At his confirmation hearings to become attorney general, Alberto Gonzales was asked, "Do you approve of torture?" Gonzales' tenure as White House Counsel has been marked by criticism, but none so strident as the claim that he bears much of the responsibility for the torture scandals at Abu Ghraib and Guantanamo Bay.

Still, his experience—as a lawyer with a prominent national firm, as a Texas Supreme Court judge, and in the White House—has given him many of the tools needed to run the Department of Justice. Will Gonzales be a good attorney general?

John D. Huston is Dean of the Franklin Pierce Law Center. Heather Mac Donald is a John M. Olin fellow at the Manhattan Institute and a contributing editor at City Journal.

Huston: 1/25/05, 10:04 AM
Let me start this out by echoing what many others have noted; that is, that Judge Gonzales has a compelling personal history. I have great respect and admiration for all that he has accomplished during his lifetime. It is an inspirational story.

In an effort to set the stage, let me talk for a moment about the office of Attorney General. I believe the A.G. is unique among the cabinet officers because she or he bears a responsibility directly to the American public as the chief law enforcement officer of the United States. The A.G. also must be the watchdog over the government. Finally, people don't always understand the breadth and depth of the responsibilities of the A.G. For example, he or she has control over the FBI, DEA, ATF, and a host of other law enforcement agencies and all the U.S. Attorneys around the country.

For those reasons I think the nominee should not be benefited by the deference that the Senate should give to other cabinet nominees. At the confirmation hearing, Senator Schumer made the point that he would be deferential to this nomination but he would not be in judicial nominations. (Everyone in the hearing room knew he was foreshadowing a Gonzales nomination to the Supreme Court.) And yet, I think that same "strict scrutiny" should apply to A.G.

With that backdrop I think Judge Gonzales is not qualified to be A.G. and should not be confirmed. (In the interest of full disclosure, I should add that I testified to that effect at this confirmation hearing.)

I take this position for several reasons, but all related to the so-called "torture memos" that were produced in 2002 by various agencies in the government. He personally drafted one to the President in January, 2002 in which he referred to Geneva Convention (GC) limitations on interrogation techniques for prisoners as "obsolete" and requirements for the treatment of prisoners as "quaint."

He also told the President that it would create difficulties for us if the G.C. applied because while no one can be prosecuted for violations of the G.C., "grave breaches" of the G.C. are violations of the War Crimes Act, which is U.S. law, which is punishable by death. In other words, if the G.C. apply, U.S. personnel could be prosecuted in U.S. courts for grave breaches under the War Crimes Act. If they don't apply, then it's Katie bar the door. We can do what we want.

Is that what we want U.S. policy to be?

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