- The Washington Times - Sunday, December 5, 2004

Among the supporters of Alberto Gonzales as attorney general is Theodore Olson, whose distinguished record includes his recent service as solicitor general. But in a Nov. 15 Op-Ed on this page endorsing Mr. Gonzales’ appointment, Mr. Olson left out certain parts of Gonzales’ record that should rule him out as the nation’s chief law-enforcement officer.

Strong indications are that Senate Democrats, battered by the election results, will not filibuster Mr. Gonzales, although they will vigorously question him at the January confirmation hearing. But the citizenry needs to know specifically whether Mr. Olson is correct in saying that, to Mr. Gonzales, “the law is the law, and it will be administered as it is written.” A Nov. 11 news story in The Washington Times notes that, in a January 2002 legal opinion to the president, Mr. Gonzales advised: “The war against terrorism is a new kind of war, a new paradigm that renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.”

But as retired Gen. Tim Cullen of the U.S. Military Court of Appeals told National Public Radio’s Nina Totenberg on Nov. 11, Mr. Gonzales did not consult generals of the Army, Air Force and Navy in formulating policy on treatment of prisoners “because he knew they would oppose it …. The Judge Advocate Generals Corps would never sanction departures from the Geneva Convention or engaging in practices that the common man would regard as torture.” Moreover, as White House counsel, Mr. Gonzales supported the president’s position that he had the sole authority to detain American citizens as “enemy combatants” indefinitely, without charges and without access to lawyers. And without the courts being allowed to review those decisions. The Supreme Court, in Hamdi v. Rumsfeld in June, emphatically rebuked Mr. Gonzales’ advice in an 8-1 ruling.

As Justice Sandra Day O’Connor famously said, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of American citizens.”

Mr.Olsonalso maintains that Mr. Gonzales has an admirable record on administering the laws “equally for all.” However, in the July/August 2003 Atlantic Monthly, Alan Berlow wrote a long article, “The Texas Clemency Memos,” based on the actual 57 memos to then-Texas Gov. Bush from his legal counsel, Mr. Gonzales, concerning prisoners on death row.

The summaries, Mr. Berlow wrote, “were Bush’s primary source of information in deciding whether someone would live or die.” The 57 memos by Mr. Gonzales were among the cases of the 150 men and two women who were executed during President Bush’s tenure as governor, which was “a record unmatched by any othergovernorinmodern American history.” Each of the Gonzales memos was between threeandseven pages long. “In thesedocuments Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence,” according to Mr. Berlow. There was the case of Terry Washington, “a 33-year-old mentally retarded man with the communications skills of a 7-year-old executed in 1997.” Mr. Berlow’s writes that Mr. Gonzales’ three-page report on Washington omitted his mental limitations and the fact that, as a child, he and his 10 siblings “were regularly beaten with whips, water hoses, extension cords, wire hangars and fan belts.”

Nor was then-Gov. Bush told by his legal counsel that this information was “never made known to the jury, although both the district attorney and Washington’s trial lawyer knew of this potentially mitigating evidence.” Nine hours after Mr. Gonzales’ brief oral report to the president, Terry Washington was executed. Is this the person to head the Justice Department?

Referring to Mr. Gonzales’ record on “clemency,” Peter Carlson wrote in The Washington Post on July 29, 2003, that “it’s hard not to conclude that both Gonzales and Bush were rather callous, even cavalier, about the most profound decision any government official can make the decision to kill another human being.”

During the hearings on the nomination of John Ashcroft for attorney general, Sen. Herb Kohl (D-Wis.) said that “not only must the president trust his attorney general, the nation must also trust him, for, after all, he is America’s lawyer.” I have little doubt that the Senate Judiciary Committee will confirm Alberto Gonzales. But the public should haveachancetoknow whether we should trust this new chief law-enforcement officer of the nation in a time of war when the Bill of Rights, a core of our justice system, is most dangerously challenged by the administration.

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