Removing Gonzales Will Not Remove Systemic Problems

March 12, 2007

*Cross-posted from The Huffington Post

After the summary defenestration of Donald Rumsfeld and the slow martyrdom of Scooter Libby, the New York Times'
call yesterday for the President to fire his Attorney General, Alberto
Gonzales, no longer seems unrealistic. Yet the firing of one person, no
matter now misguided or sub par their performance as the leader of a
critical federal institution might have been, will not solve the deep
institutional problems that are becoming increasingly evident in our
national security policy.

Calls for Gonzales'
exit stem from two seemingly separate scandals, the politicization of
U.S. Attorneys, tasked with making independent prosecutorial decisions
for federal law violations, and from the FBI's misuse of national
security letters, or NSLs. The latter, as Geoffrey Stone explains here
are a sort of subpoena that allows the FBI to secure documents from
businesses without judicial warrants. Not only has the number of NSLs
skyrocketed, their misuse has also gone underreported.

These two stories are, in fact, symptoms of a common problem. Eighty
years ago, President Franklin Delano Roosevelt marshaled a group of
progressive reformers to establish new federal agencies to confront the
Great Depression. FDR's reformers understood the importance of
professionalized, empirically-based solutions to the nation's pressing
problems. Thus, in addition to tackling the nation's financial woes,
they tried, with some success, to create new institutions that would
provide expert, non-ideological solutions to real problems.

Now, the FBI was not always the model of disinterested
professionalism. It was, after all, J. Edgar Hoover, who led the
bugging of Dr. Martin Luther King, Jr., and the efforts to destroy his
name and precipitate his suicide. This was just the tip of a larger
iceberg of abuses. But the Bureau, and other security agencies, was
eventually reined in by Congress at the end of the 1970s, as Fritz
Schwarz and I have explained. Many success controls and oversight mechanisms were set in place.

More so than at any other time, we have seen during this
Administration a concreted effort to demolish these mechanisms for the
FBI and its larger institutional home, the Department of Justice.

For starters, the machinery of justice has been politicized. The
civil rights division of the department of justice, for example, has
been shanghaied into endorsement of dubious redistricting in Texas and
a voter id law in Georgia.
Anecdotally, one hears that hiring in the Justice Department is no
longer done by career lawyers, as it was from the Ford to the Clinton
years. Now it is the responsibility of political appointees.

At the same time that professional standards are under assault,
oversight has been evaded or gutted. It is not only the use of NSLs
that has not gone reported. Both Congress and the public are still in
the dark about a gamut of national security measures that directly
impinge on our civil liberties.

Take, for example, the NSA's warrantless surveillance program.
Earlier this year, the Government announced that it had got that
approved by the FISA Court,
a body of judges that is supposed to screen all intelligence search
warrants. That sounds comforting, until you realize that the
surveillance protocols endorsed by the generally conservative FISA
panels may be just as sweeping and open-ended as the past secret
programs. Or until you learn that the Administration has insisted that
only a handful of members of Congress will be briefed in a limited form
that effectively disables legislative oversight.

Another example of worrying non-disclosure concerns a 2002 law,
introduced by Senator Patrick Leahy, that requires the Attorney General
to disclose any times when the President decides a law is
unconstitutional, and thus should be ignored. From the President's own signing statements,
and from internal Justice Department memos, we know that the President
invokes this power with dangerous regularity, claiming prerogatives far
beyond those the Constitution gives him. And yet the Attorney General
has never filed a report with Congress on the number of times the
executive has declined to comply with federal law.

Combine the assault on professionalism with the refusal of
oversight, and you get a dangerous vacuum: decisions about
investigation and prosecution are no longer made on the basis of
objective criteria. They are used to leverage partisan gain (as
decisions about the Texas redistricting and the Georgia id law
certainly seemed to be). Or they will be made for even narrower,
selfish purposes.

The result is a set of policies that leaves us less safe as well as
less free. Concrete proof of this came a couple of weeks ago in another
report
by the Justice Department's Inspector General (who was also responsible
for the revelations about the NSLs). This report concerns the Justice
Department's prosecution and reporting of terrorism cases within the
United States, and makes disturbing reading. It turns out that various
components of the Justice Department have "decentralized and haphazard"
ways of reporting terrorism cases. In presenting their records to
Congress and the American public, investigators and prosecutors have
been systemically overreporting both the number of terrorism cases in
the United States, and their successes in these cases.

They do this by treating any prosecution that comes from an
investigation vaguely linked with "terrorism" as being a "success" in
the War on Terror. For example, there has been a sequence of airport
sweeps for undocumented workers, most famously one called "Operation
Tarmac." Of course, these operations pulled in dozens of undocumented
workers (mostly Hispanic), who were duly prosecuted: All of these
prosecutions were counted as "terrorism" cases even though there was
never any connection between the individuals concerned and any hint of
terrorism. Yet this large investment of federal resources hasn't
necessarily made the nation any safer - even as it strokes nativist
sentiments.

Of course, the kind of policy makes individual prosecutors look
good. And it bulks up the numbers that Justice reports to Congress at
the end of each year, justifying greater appropriations. But it also
gives a misleading impression of the scope of the terrorist threat in
the United States, which in turn is used to underwrite new, and
harsher, policies.

Until we have a return to real oversight, and a fresh commitment to
professionalism with the Justice Department, we won't be able to get
our counter-terrorism policies straight. We will continue to
misallocate resources and misjudge the threat. This means holding
hearings on how internal oversight within the Justice Department is
done. It means examining the functioning of critical institutions like
the Office of Legal Counsel, which has an important influence on legal
policy. And it means strengthening disclosure laws - and the sanctions
for non-disclosure - to ensure a meaningful conversation between the
ranches of government.

Getting rid of Gonzales, in short, may be satisfying for some in
Congress who have been frustrated by his stonewalling - but it will not
solve these systemic problems, which demands wholesale legislative
reform as answers.

Aziz Huq: "Removing Gonzales Will Not Remove Systematic Problems" (pdf)