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Justice Denied

  • Aziz Huq
Published: August 27, 2007

*Cross-posted from

The resignation of Alberto Gonzales has brought a smile to the faces of many Bush Administration critics, but will it bring real change? Unless the Senate Judiciary Committee seizes its chance in a new Attorney General’s confirmation hearings, the danger is that Gonzales’s exit won’t just leave Justice tarnished—it will also mean justice denied.

Denial of justice is a theme for this Administration, as illustrated by some very strange bedfellows. Take José Padilla, originally accused of a plot to explode a dirty bomb but convicted two weeks ago of being a third-tier member of a fourth-tier conspiracy to aid foreign fighters. Or Scooter Libby, convicted of perjury and obstruction of justice, but whose sentence was commuted before any full accounting of how the decision to leak Valerie Plame’s identity was taken, and what role partisan politics may have played. Then there’s George Tenet: As the CIA’s own Inspector General made clear, Tenet “did not use” the resources he had to head off the attacks of 9/11. Yet rather than explore what went wrong or require Tenet to account for himself in ways that clarify the ongoing management and policy weaknesses of the intelligence community, CIA director Michael Hayden has rejected any accountability or even discussion, claiming these would “distract” the nation. (The suggestion is demeaning: Does Hayden think we are all 5-year-olds? It is also perverse: How can any government agency get better at its job if it says that understanding its past mistakes is a “distraction”?)

In each case there are serious allegations of criminal wrongdoing or shameful negligence. In each case, accountability has been stymied. The public rightfully resents the official obfuscation as to whether the government is using its awesome security powers responsibly, and whether legitimate fears of terrorist attack are being twisted into grist for a partisan political mill.

Will Gonzales’s departure leave the nation permanently in the dark? Will the rule of law be further undermined?

Gonzales leaves the Justice Department tarnished in two ways. First are the allegations of politically motivated firings of US Attorneys and concerns that criminal prosecutions and dubious charges of “voter fraud” have been timed to influence the results of close federal and state elections. Second, less noticed and perhaps more serious, Gonzales has presided over a wrecking of the rule of law. The Gonzales Justice Department has consistently taken the position that bedrock laws enacted to protect Americans’ liberty and constitutional rights—and the nation’s standing in the world—can be shrugged off at a moment’s notice—in secret and without public debate or even notice to Congress.

Thanks to Gonzales and his allies, too many citizens of the world know America as a country that treats international law as “quaint,” that recklessly and lawlessly spies on its own citizens and that engages in torture. If we are lucky, that is the America of yesterday; it need not be the America of tomorrow.

Yet, Gonzales’s resignation will do nothing to repair the deep wounds inflicted on the Justice Department: It will not repair the harm done by politicization. It will not undo the wildly flawed legal opinions licensing torture and warrantless spying. It will not restore the rule of law.

Solicitor General Paul Clement, who has become Acting Attorney General, is a very fine courtroom advocate, but he is unlikely to linger in that managerial post. And speculation about Michael Chertoff, who presided over the Katrina catastrophe and has overseen a sinister growth in the intelligence activities of the Homeland Security Department, hardly inspires confidence.

Like Libby and Tenet, Alberto Gonzales rides off into the sunset just in time to evade a full accounting for his actions. Like Libby and Tenet, he leaves behind a government that knows how to scare Americans by invoking the threat of a dirty bomb or a mushroom cloud, but that seems to possess insufficient capacity to accurately target those who present a real threat. What remains in place is a government good at fostering the impression of toughness but dangerously incompetent at delivering the goods, as the failure even to prosecute Padilla for his alleged conspiracy shows.

The Senate Judiciary Committee can use the confirmation process for a new Attorney General to force disclosure of the legal opinions and mandates by which law has been distorted and justice turned from its proper course. It should make plain for the public record what, we hope, has been a low watermark for Justice.

But that is only a beginning. The Gonzales resignation can mark a rising tide for the rule of law. For that to occur, the next Attorney General—and the next President—must vigilantly repair the corrosion of, and the disrespect for, the rule of law, that Gonzales leaves behind.

In November 2008, let the people choose accordingly.