Worse Than Ashcroft

Alberto Gonzales is unfit to be Attorney General for two related reasons, both made evident in the infamous ‘war crimes’ memo (PDF) he wrote in 2002: he lacks both competence and conscience.

The memorandum itself is an analysis of the applicability of the Geneva Convention (III) Relative to the Treatment of Prisoners of War to prisoners captured in Afghanistan, during the first war of the reign of George III (and yes, he is the third President of the United States to be named “George.”) Gonzales first concludes that the Convention is per se inapplicable to al Qaeda members, and that the President has the authority to declare it inapplicable to Taliban members. He then goes on to argue that George III should, as a matter of prudent legal policy, declare the Convention inapplicable. Both pieces of the argument are inexcusable.

Gonzales’s problems begin with the name of the Convention. He refers to it as “The Geneva Convention III on the Treatment of Prisoners of War,” substuting “on” for “Relative to.” This is a minor quibble, but I think it illustrates several things. First, the memo is slipshod; junior associates in law firms who make similar mistakes get screamed at. Gonzales was clearly not working with the full set of source materials in front of him. Second, this is the sort of mistake you make when you don’t know what you’re talking about in detail. I’ve never studied international law, but I know that at least some of the Geneva Conventions are “relative to” something. These are words that stick in your head. You don’t mess them up unless you are someone who doesn’t pay much attention to the Geneva Conventions and never has.

Now, for his determination that the third Convention doesn’t apply to treatment of captured alleged Taliban and al Qaeda members, Gonazles defers to another memo, one written by the Department of Justice’s Office of Legal Counsel. In his words:

OLC’s interpretation of this legal issue is definitive. The Attorney General is charged by statute with interpreting the law for the Executive Branch… . He has, in turn, delegated this role to OLC.

But this conclusion is wrong, for two reasons. First, it is simply untrue that the rest of the Executive Branch is required by statute to agree with the opinions of the Attorney General. Statute 5 U.S.C. ch 31 does require the Attorney General to provide opinions on matters of law at the request of Executive Branch officers. It also reserves the ability to litigate for the government to DoJ. What this means is that opinions of the OLC are binding on the Executive Branch for litigation purposes. Courts ordinarily defer (to an extent) to agencies’ interpretations of federal law, but they will not defer to an agency interpretation in the face of a contrary interpretation from Justice.

To recognize the absurdity of Gonzales’s statement, note that if we take it at face value, he would find the President himself legally unable to disagree with an opinion by one of his subordinates. You don’t have to believe in a unitary executive to think that there is something wrong with this picture. Gonzales is distorting the sense in which the OLC’s opinions can be said to be “binding.” Why?

Because if he looked beneath the cover of that opinion, he’d have to confront the speciousness of its reasoning. The OLC memo goes so far as to say that international laws of war are not binding on the U.S. but can nontheless be used by the U.S. to prosecute its enemies for war crimes. The State Department’s rebuttal memo is quite forceful, pointing out many places in which the United States notes itself bound by customary international law and noting the numerous fallacies of the OLC memo. For Gonzales to have reiterated its logic would have meant that he, as a lawyer, would be giving advice that was ridiculous on its face and that he had seen convincingly debunked; by passing the buck, he tried to avoid getting into those deep waters.

No matter, the memo is malpractice anyway. Gonzales owes his client—George W. Bush, in his official capacity as George III—a duty not just of zealous advocacy but also one of diligence. And that means giving legal advice that is as correct as Gonzales can give with reasonable effort. Treating the Convention’s inapplicability as settled legal fact is not a conclusion that a lawyer who looked into the matter with any degree of care would reach. The United States signed and ratified the Convention; the Constitution makes treaties binding; the standards of international law don’t recognize the sorts of distinctions that Gonzales wanted to make.

Indeed, his giving such advice was a breach not just of his duty of diligence but of the much lower ethical standard of competence. Calling the Convention “quaint” is not a legal argument; you cannot un-ratify a treaty by asserting that a “new paradigm renders [it] obsolete.” He had in front of him a memo that carefully rebutted the OLC memo; in any world except the up-is-down zone emanating from George III, disregarding it so utterly would be an open-and-shut case for professional discipline.

Indeed, were George III himself to be tried for war crimes someday—as well he may, should the rest of the world collectively decide to stop putting up with this shit—it might console him to know that he could get a nice civil damage award from Gonzales for giving him incompetently bad legal advice. (Yes, the MPRE is this Friday. Can you tell that professional responsibility issues have been in my mind?) As for the families of Americans beheaded in Iraq, well, I wish that our legal system gave them a remedy against Gonzales for lowering the bar of civilization.

So much for Gonzales’s worthlessness as a lawyer; now for his worthelssness as a human being. We might start with giving incompetently bad legal advice that just so happens to authorize torture and maltreatment of prisoners. His defense there is the same as that of the lawyer who tells his client to murder his parents so as to have a better case for mercy: “I vas only helping my client.”

To which the reply is that a lawyer’s duty to avoid assisting his client commit crimes takes precedence. When those crimes involve the death or serious bodily harm of others—as Guantanamo and Abu Ghraib certainly have—the precedence is absolute in many states: the lawyer must come forward to prevent the injury. Still, I suppose Gonzales might get off this particular hook on account of his incompetence: if he’s too stupid to know the law and too lazy to look it up, maybe he really did think that George III has an official right to authorize brutally coercive interrogation techniques.

But that excuse won’t help with the second half of the memo, the one in which Gonzales advises George III to declare the Third Geneva Convention inapplicable. That’s right, the part in which he says not that George III can authorize torture but that George III should. Here, there is no defense of zealous duty to the client available. Alberto’s client asked him for advice as a matter of policy, and Alberto gave it. That advice reveals him to be inhumane and utterly unconcerned for justice.

Alberto Gonzales thinks that “flexibility” and the need to “avoid foreclosing options” are more important than basic human rights. Alberto Gonzales thinks it’s a “[p]ositive” thing to help Americans who have committed “grave breach[es]” of the laws of war or “outrages against personal dignity” avoid prosecution. Alberto Gonzales looks for definitional loopholes to avoid the application of a statute enacted to prevent some of the vilest conduct imaginable. Someone for whom these are positive goals lacks the sense of justice necessary for any government lawyer, let alone an Attorney General.

An Attorney General must be an excellent lawyer, capable of representing the United States with skill, of enforcing its laws effectively, and of rendering excellent legal advice to its government. Alberto Gonzales is an incompetent lawyer, who has shown himself a poor judge of his client’s interest, a contempt for laws of the United States, and an inability to render accurate legal advice.

An Attorney General must also be an excellent human being, always seeking to punish criminals, to protect the innocent, to uphold the standards of justice, and to preserve those qualities that make a nation worthy of respect. Alberto Gonzales has sought to protect wrongdoers from the deserved legal consequencs of their actions, to leave those who may be innocent without legal recourse, to pervert justice, and to spit in the face of dignity, liberty, benevolence, moral authority, human rights, and the rule of law itself.

Alberto Gonzales has blood on his hands. All those who help to confirm him will share in it.

Addendum: I don’t mean to pass in detail on Gonzales’s other merits and demerits. There are certainly other ways in which he might be less awful than Sheriff Ashcroft of Nottingham. His demonstrated history of personal loyalty to George III strikes me as a negative, and he seems to be at the periphery of a few too many of the investigations swirling around the White House, but he does seem to have at least a less confrontational working style than the Sheriff.

My point is Gonzales’s record on the abuse memos alone disqualifies him. Their moral repugnancy is unacceptable; you give someone who signs off on evil his walking papers, not a promotion. It doesn’t matter what he says about them now; he’s already demonstrated the defective quality of his moral and legal judgment.