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Democracy Promotion Abroad...

...enthusiastic endorsement of torture here at home. All in a day's work at the Oxblog. I note also something I've tried to raise repeatedly with regard to the torture memos, namely that if the Geneva Conventions are, in some respect, a bad idea, or even if they aren't a bad idea but Bush merely believes they are a bad idea, there is a procedure in place to alter US law. This procedure involves the United States Congress, passing a new bill, and having the president sign it into law. We all understand, I think, that just because the White House thinks we should privatize social security doesn't mean they can just stop sending out checks and start putting payroll tax money into private accounts. They need to propose a change, and get it passed by the legislature. Al Gonzales is by no means the most rabidly rightwing Texas lawyer in the universe, and he has a nice life story, but he doesn't seem to grasp this basic point of constitutional procedure. That there's a war on doesn't mean the game suddenly has no rules and the president can just do whatever. A man with no respect for the law has no business as Attorney-General.

November 11, 2004 | Permalink


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» Conceptual Co-opting from And So Then
Ditto what Matt Yglesias says re: Oxblog re: Attorney General nominee Alberto R. Gonzales. Also questionable is Belton's description of Gonzales as a "moderate"... [Read More]

Tracked on Nov 11, 2004 5:48:33 PM


Wow, this is an astonishingly bad post. I'll not even comment on the memos themselves, but to accuse Oxblog of an "enthusiastic endorsement of torture" is just so incredibly dishonest, since Oxblog doesn't refer to his time as White House Counsel at all, just his childhood biography and his history on the bench.

But, of course, that's typical of the left these days. All they have left is utter dishonesty.

Posted by: Al | Nov 11, 2004 11:58:33 AM

yeah i was a little shocked at oxblog's post too. its weird that when writing about AG, the torture memos wouldn't be at least one of the things you'd mention.

Posted by: zack | Nov 11, 2004 12:08:28 PM

Yep, Al, if I were you I wouldn't offer a substantive defense of Gonzales either. Your other point is also compelling: ignoring Gonzales' claim that the President can ignore binding laws he doesn't like certainly means it doesn't exist.

Posted by: Scott Lemieux | Nov 11, 2004 12:17:15 PM

Are there really questions about his middle name? If we start a pool on what it is, I'd like three boxes: "Elian," "Fidel" and "Castro."

But Gonzalez is a real scary guy. While Ashcroft was at least guided by his very tight (no dancing! come on!) ideology, Gonzalez follows only what will help his bosses, using anything in his power to justify those positions, especially if it means disregarding laws and hurting lots and lots of people.

Posted by: dstein | Nov 11, 2004 12:21:47 PM

I think you're conflating the issue of the Geneva Conventions and the Convention against Torture. There's a legitimate disagreement about whether, on it own terms, the Geneva conventions apply to Al-Queada members. No question about some presidential prerogative to dispense with binding law. What is binding without question is the Convention Against Torture, and that's what the memo suggested might be lifted by some presidential dispensing power in times of dire threat. Notice, however, that the President specifically refused to use this power, and that all the debate within the administration has been about what is permissible under the torture convention. That's why there was a huge discussion in the Pentagon about which specific procedures could be used, etc. Now, of course we've seen abuses that violate the Convention, but there's no evidence they've occured because the president has made a decision that he can dispense with the laws.

Posted by: rd | Nov 11, 2004 12:24:28 PM

I believe there is some misunderstanding as to what Gonzales's memoranda were intended for. As I posted elsewhere (in two comments):

(First) Lawyers do many things, and advising a client is only one of them. Sometimes lawyers are called upon to defend a client, sometimes to advise a client, and sometimes to try to figure out a way to give some plausible--even if barely plausible--legal cover for something a client intends to do anyway. You can consider a memorandum directed to the last something of a CYA ("cover your ass") memo, if you like, although it is generally referred to as an "opinion of counsel." In the private sphere, an opinion of counsel can be used by a party for many things, including, for example, to try to mitigate damages or avoid punitive damages in a lawsuit. For example, if a particular law called for increased damages or punitive damages if a party did something that knowingly did something that contravened the law, the party might successfully avoid that by asserting that the opinion of counsel provided a basis for it to believe that it had a legal right to do what it did. With reference to Dan's second-to-last paragraph, the party could have had a legal right to do what it did for one or both of two reasons, (i) what it did was within a law that covered what it did, and (ii) what it did was not covered by the law.

...it appears that Gonzales's memoranda were in the nature of an "opinion of counsel"--to try to give legal cover for something that the president wanted to do anyway. I'm sure that the president wanted the memoranda for public relations purposes--the likelihood that anyone would prevail in a lawsuit for damages over the matter is remarkably slim--but that is beside the point.

(Second) A lawyer does not necessarily approve of everything that his client does, has done, or wants to do, for which his services are requested. A lawyer is a hired gun. There are cases where the lawyer, because he personally believes that he is incapable--for whatever reason--from providing the client with adequate representation, and in those cases the lawyer must refuse to represent the client. And I will tell you that that can include if the lawyer believes that the client is distasteful--one instance of that occurred with a law firm I was associated with about 20 years ago, and then it was because the female secretaries found the client distasteful.

In this case, it's impossible to tell whether Gonzales actually agreed with the president's position merely from the fact that he wrote the memorandum. As I said, he apparently believed that came up with a (to my mind, barely) plausible argument to provide cover for what the president was going to do anyway. If he had believed that he was unable to come up with even a barely plausible argument, he should have refused to write on the memoranda. In that case, he could have had the memoranda written by others--plausibility is in the eye of the beholder. (Actually, I don't know what his position was in the White House counsel department. If he was head of the department, it is unlikely that he wrote it alone. Indeed, he might not have written any of it, and instead merely signed off on it. Something like a senior partner in a law firm.)

Posted by: raj | Nov 11, 2004 12:30:13 PM

What we DO know, without a doubt, is that Gonzales did not say, "Mr. President, this is the wrong thing to do. Leaving aside the law, this is just morally wrong." Maybe your notion of the lawyer-client relationship doesn't include that, but I'm a lawyer, and MY notion sure as hell does.

Such a man shouldn't be a lawyer, let alone the Attorney General of the United States of America. This country has no pride left---only arrogance and hubris.

Posted by: Anderson | Nov 11, 2004 1:00:38 PM

rd: I call bullshit. Khalid Sheikh Muhammed was waterboarded, according to what little information we have, and I cannot believe that the treatment of a prisoner of such high profile and importance did not pass by the very top of the chain-of-command.

The Pentagon resisted, which goes to your discussion. CIA-managed prisoners are a black hole.

Belton shocked me too. But if you are reading Oxblog, I think we need a meta-ethic post on the indecidability of whether dogs have a moral sense.
My shepherds have one, that they constantly exult in violating. Baddogs.

Posted by: bob mcmanus | Nov 11, 2004 1:05:33 PM

I, too, am a lawyer, and Anderson is correct. Remember last year those tax attorneys who got busted for writing opinions on certain illegal tax shelters--you can break the law merely by writing an opinion, buddy.

Posted by: Goldberg | Nov 11, 2004 1:07:38 PM

Oh, come on. Don't mince words. OxBlog is objectively pro-torture.

Posted by: Anonymous Coward | Nov 11, 2004 1:10:07 PM

Looks like you're pretty blatantly putting words in somebody else's mouth here - Oxblog's entire post is about his background as a migrant worker and time on the bench. Of course, that's just in a day's work for a snarling, ill-spirited twit like yourself. Grow up and learn some manners, kid.

Posted by: Joseph | Nov 11, 2004 1:13:18 PM

Joseph, you're so cute when you're trying to sound older and wiser. The poster at OxBlog knows about the torture memos; the fact that he doesn't mention them doesn't mean Gonzales never authored them.

Posted by: heh | Nov 11, 2004 1:39:44 PM

Goldberg | November 11, 2004 01:07 PM

>I, too, am a lawyer, and Anderson is correct. Remember last year those tax attorneys who got busted for writing opinions on certain illegal tax shelters--you can break the law merely by writing an opinion, buddy.

I, too, am a lawyer, and I do believe that you did not understand what I wrote. What I wrote can be succinctly stated in the first sentence of my last paragraph:

"In this case, it's impossible to tell whether Gonzales actually agreed with the president's position merely from the fact that he wrote the memorandum."

which (a) is true, and (b) is the issue that I took MY to be raising regarding Gonzales. Not only is it true, your point has nothing to do with what I said. Of course if an opinion of counsel is part of an illegal scheme, the lawyer can be held liable--even criminally. So? What does that have to do with whether it is possible to tell whether Gonzales actually agreed with the president's position?

Posted by: raj | Nov 11, 2004 1:50:49 PM

it appears that Gonzales's memoranda were in the nature of an "opinion of counsel"--to try to give legal cover for something that the president wanted to do anyway

if that's the case, then the blame for crossing this moral line lies with W, no? well, we all know nothing ever sticks to W, so we might as well try to stick this to Gonzales. :)

this bumper crop of bad apples wasn't just bad luck.

Posted by: cleek | Nov 11, 2004 2:02:07 PM

Remember, Al is a craptastic lawyer with idiotic opinions.

Gonazles is probably his hero.

Posted by: ahem | Nov 11, 2004 2:23:33 PM

This is a perfect spot for the strategy of Parliamentary-system-style opposition. Gonzalez will be confirmed, a filibuster will fail, the "obstruction" charge will hurt -- especially given Gonzalez's ethnicity and life story. And as AG he probably won't be much, if any, worse than anyone else W puts up.
The tack to take is to lay out in exhaustive detail all the reasons he sucks, recognize that the voters in their infinite wisdom have voted for exactly this sort of thing despite our warning them, vote "No," get outvoted, and let the public have a horse doctor's dose of what it says it wants. Then keep as much heat on as they can from a minority position.

Posted by: C.J.Colucci | Nov 11, 2004 2:26:08 PM

I think C.J. is probably right about strategy, though it's depressing to think so.

Posted by: Walt Pohl | Nov 11, 2004 2:45:49 PM

No... please, please, PLEASE filibuster! I'm begging you.

Posted by: Al | Nov 11, 2004 3:28:14 PM

What I wrote can be succinctly stated in the first sentence of my last paragraph:

"In this case, it's impossible to tell whether Gonzales actually agreed with the president's position merely from the fact that he wrote the memorandum."

which (a) is true, and (b) is the issue that I took MY to be raising regarding Gonzales. Not only is it true, your point has nothing to do with what I said. Of course if an opinion of counsel is part of an illegal scheme, the lawyer can be held liable--even criminally. So? What does that have to do with whether it is possible to tell whether Gonzales actually agreed with the president's position?

Maybe the fact that there's not a single sentence in the memo indicating disagreement?

I'm not interested in some casuistic "mental reservation" on G.'s part. I'm interested in his giving the same weight to "this is wrong" as to "this is how to justify your wrong behavior." When the latter makes it into the memo, and the former doesn't merit inclusion, then priorities are clear.

Leaving morality, ethics, and professionalism aside, I'm amazed G. didn't even put a little CYA in there, on the theory that (1) this memo might see daylight and (2) G. might want to be appointed to some high post one day. The only conclusion I can draw from its absence is that G. is (1) arrogant, (2) supremely confident in the secrecy of his memos, or (3) utterly unable to distinguish right from wrong, like some of the commenters in this thread.

Posted by: Anderson | Nov 11, 2004 4:43:47 PM

The submissive wetting of the Democratic Senators in response to the Gonzalez appointment (as said at Pandagon, if they don't attack him now, they won't be able to when he gets nominated to SCOTUS), leads me to add another layer to my tin-foil hat. Porter frigging Goss got an easy time?Either Bushco has something on these guys (threats of national violence?) or we simply need another party. Vote em all out, they are worthless.

Posted by: bob mcmanus | Nov 11, 2004 4:57:19 PM

Hey Al,
I''ve talked to guys like you for years, but I never had the temerity to ask. What is it like to have an erection of the brain? Does it ever go down when you get off? And by the way, how do you jerk it off when it is inside such a thick skull? Oh, that must be when you post where you are not wanted and when you are so obviously in heat. Hey, I think I recognize you after all now that I think about it. You must have been that coward who always shouted "fight, fight" in the schoolyard when I was having to fight some stupid asshole, weren't you? I had a dog like you once, he humped everything he could find and it was never, ever, enough and it was always the wrong object. But I loved him anyway cause he was always glad to see my leg. Help IS available. Oh, and no, it's not name-calling, and it's not Al-bashing, it's telling it like I see it, in simple terms. You like a president like that, so I'm just learning from him. I'm not a nuance kind of guy anymore, not since November 3rd.

Posted by: Loupy | Nov 11, 2004 5:09:06 PM

Yeah, the strategy may be depressing, but Al WANTS us to filibuster, a clear sign that the depressing strategy is the way to go.

Posted by: C.J.Colucci | Nov 11, 2004 5:46:45 PM

I feel i'm posting this response a bit late, but there's such thing as resigning on principle, if you're in fact forced to write such an odious opinion b/c your client is basically forcing you to do so (which, btw, doesn't happen very often in my experience)

Posted by: Goldberg | Nov 11, 2004 5:57:55 PM

CJ Colucci, deciding your strategy on the basis of what Al wants has the fundamental assumption that he understands the situation better than you do. I don't think you want to make that assumption.

It's equivalent to deciding who you want for president by guessing who bin Ladin wants least. How would he know who'd make the worst president?

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