Tuesday, January 11, 2005

The Gonzalez Caper: Brickbats For The Pols, Praise For Part Of The Press, And Possible Partial Exculpation For Jack Goldsmith.

January 11, 2005


Re: The Gonzalez Caper: Brickbats For The Pols, Praise For Part Of The Press, And Possible Partial Exculpation For Jack Goldsmith.
From: Dean Lawrence R. Velvel

Dear Colleagues:

Though this became expectable perhaps two weeks ago, the hearing on Alberto Gonzalez was something of a political farce, both stylistically and substantively. That, of course, is not unusual in a country where politics and farce often are interchangeable terms. Conversely, while it was not necessarily expectable, the performance of major elements of the print media has been pretty good recently with regard to Gonzalez and some other Bush-related matters. There nevertheless are, however, a few points which the media mainly missed or to which it paid little attention. One of these is a semi-exculpatory, or balancing, matter relating to Jack Goldsmith, the Harvard law professor who, as Legal Counsel in the Department of Justice, wrote a memo approving transfer of prisoners to countries where, it was known, they would be tortured.

Let’s start with the semi-farcical hearing on Gonzalez, and let us start there with the style used in the Senate generally and in this hearing in particular. As is their custom, Senators referred to each other, to the nominee, to his wife, to his mother, to his children, as the wonderful person from this state or that state, as the leading expert on this or that, as the oh-so-deserving gentleman and brilliant leader from state x or y, as the exemplar of overcoming poverty and his wonderful wife and his wonderful children and his sensational mother, as the man I have always so much enjoyed working with, and so on ad nauseum. No serious person, in the sense in which novelists and, I think, the English have used the word serious, will engage in this kind of bovine defecation. When one hears it, one immediately knows he is dealing with phonies, with dishonest derriere kissers. One’s confidence in such persons is a minus number. (Can you imagine sitting in a business meeting and hearing people say these things? How much confidence would you have in them?)

There are at least two replies to be made to this rarely stated, conceivably even unique, point of view. One is that it is by such social lubrication that the Senate manages to operate. The differences of opinion among Senators are so strong, the feelings so deep, that such lubrication is essential to retain civility. We don’t want Senators to be caned on the Senate floor like Charles Sumner, do we? Better such oral bovine defecation than caning. The other reply is: "Why do you care so much anyway? Why the big deal over this phony method of speech? It’s just a form of courtesy. In the long run it means nothing."

The response to these questions comes out of everyday life -- I reiterate, everyday life. In many walks of life, people manage to, are even required to, disagree civilly, even politely, without need to resort to phoniness, to the kind of crapola that one hears in the Senate, that one saw or read of at the hearing, and that one cannot imagine in everyday life situations such as business meetings. If and when people resort to crapola in everyday life, they are phonies, they are looked upon badly, and they are usually (and rightly) ignored as dishonest fools. What is more, regardless of how one starts out, it is a fact that style becomes substance -- it migrates into substance to use a currently fashionable word connected to prisoner abuse. We have all heard such phrases as McLuhan’s the medium is the message, or you are what you eat, or something is as something does. Edgar Allan Poe, I believe, said something to the effect that, if he wanted to feel happy, he would put a smile on his face outwardly, and pretty soon he felt happy inwardly (which is sound and very accurate advice as well as another example of migration). Similarly, we all know that, after years of representing a point of view, lawyers absorb that point of view in their very pores and believe it implicitly. What all of this means is that one’s outer actions tend to become one’s inner views.

All of this is related to the Senate (and to politicians generally). One cannot have any confidence, and rightly ought not to have confidence, in people who engage in phony talk. One wouldn’t have confidence in business associates who talked that way in or out of meetings, so why should one have greater confidence in pols who do so? Such pols are just as phony as such business associates would be. Phonies are phonies, in whatever walk of life. And watching the phony pols adhere to party lines, and suck up to and do whatever their president wants if he is from the same party -- a failing of Republicans and Democrats alike -- one cannot help but think that lots of the pols’ statements and actions are driven by one or another form of derriere kissing rather than competent thought.

Of course, maybe I am all wet. I have just read, and done a one hour book-review TV show with the author on, a book called Limbo: Blue-Collar Roots, White-Collar Dreams (by Alfred Lubrano, a reporter for The Philadelphia Inquirer). Limbo shows that powerful dislike of phoniness is a blue collar phenomenon, while being a phony is a pretty widespread white collar phenomenon. So maybe this blogger’s intense distaste for phonies should be dismissed as merely a reflection of an early background that was heavily influenced by blue collar ideas even if the nuclear family had recently become economically middle class. And maybe this blogger’s view should correlatively be dismissed as simply failing to adopt to or accept the fact that phoniness is now de rigueur in much of the American population, especially its middle class and upper crust.

One wishes to add one other thing regarding style before turning to other matters. The entire hearing started off particularly abominably in this regard. Arlen Specter has always struck me as the pompous pontificator from Pennsylvania (to be alliterative), who is regarded as some kind of hero because sometimes he is somewhat liberal in a party of reactionaries. But I doubt that anyone of liberal sympathy who remembers his nasty performance with regard to Anita Hill can take seriously the claim that he is a person of true integrity or liberalism rather than a Republican Party suck-up. Specter now heads the Judiciary Committee -- apparently by dint of having backed off some prior statements in order to avoid being excluded from the chairmanship by other Republicans. He made sure the phony baloney started right at the beginning of the Gonzalez hearing when he issued a paean to Gonzalez the torture memo monger: He said, among other things, that Gonzalez is "really an Horatio Alger story." After like encomiums by other Senators, including even opponents like Leahy of Vermont, Specter asked "Would you begin, Judge Gonzalez, by introducing your beautiful family?" and then insisted that the beautiful family stand up.

Then, after Gonzalez’ opening statement, Specter opened the questioning by tossing Gonzalez an astounding softball, by tossing him what Bob Herbert of The Times called "a setup question." Specter began the questioning by asking, "Do you approve of torture?" This is a question from an ex-prosecutor? -- from a man who is supposed to be a great questioner? What would one expect Gonzalez to say? -- "Yes, I do"? This is not a question designed to elicit truth. It is political bovine defecation to curry favor for the witness and with Specter’s party -- who, after letting him become Chairman, could, after all, throw him out as Chairman in the future if they become unhappy with him for failing to follow the party line. Equally amazing as this softball question was the fact that a Times reporter described it by saying that, to open the questioning, Specter "pointedly asked, ‘Do you approve of torture?" Pointedly asked? This softball, this set up, is described by a Times reporter as a pointed question? I wish people would ask me such pointed questions. If The Times calls this a pointed question, maybe it needs a new reporter or some new editors.

Now let’s turn from the style of the hearing to some of its substance. The substance was in various respects abysmal. It was reported in The Times of January 6th that (as one would expect) Gonzalez had faced a number of "murder boards" in the White House to prepare for his testimony. "Murder boards" are practice sessions, where questions are posed, questions are answered, and new and hopefully better answers are suggested by participants. They are used for presidential candidates before debates, and for lawyers before oral arguments in appellate courts. Yet the best Gonzalez could do even after facing murder boards was pretty bad. This makes me wonder just how bad the real truth must be.

Let’s take a few examples of the miserable substance. Gonzales tried to absolve himself of all responsibility for the infamous August 2002 memo on torture which the Department of Justice renounced in mid 2004 and which it replaced one week before his hearing in a transparent effort to try to aid his nomination. All the responsibility for the August 2002 memo was placed on Jay Bybee, who afterwards went to his earthly reward -- a federal appellate judgeship, and on John Yoo, whose reward was a return to a prestigious professorship at Berkeley and who is now both defending Clarence Thomas’ taking of gifts and saying that the Yoo/Bybee August 2002 memo was better than the new one because it was clearer as to when there was or was not torture. (Translation: there hardly ever was torture under the Yoo/Bybee memo since, among other reasons, infliction of pain wouldn’t be culpable torture if it were done to gain information -- which is the reason it usually is done.) According to Gonzalez’ statements, the August 2002 memo was all Bybee’s and Yoo’s fault. Gonzalez imposed no ideas on them; he was merely trying to get the opinion of the Office of Legal Counsel so he could present it to the President. He himself had no views then and no responsibility for the memo. Right. Tell me more. I was born yesterday.

Even Gonzalez had to admit, however, that there were talks between his office and the Legal Counsel’s, and that there was give and take between his office and the Legal Counsel’s. It has also been reported that draft language was swapped back and forth. His office, moreover, had brilliant, if reactionary, ex-Supreme Court clerks, who were as capable as anyone in the Legal Counsel’s office of determining what the law was. It has become known that Gonzalez attended meetings where torturous practices like washboarding, mock burials, and slapping prisoners were discussed. Gonzalez even admits that the Administration was desperate to get information to ward off possible future attacks, which was, of course, the reason for torture. It has been reported that in the meetings he asked, but he supposedly can’t remember asking, whether they were being sufficiently "forward leaning." Dissenters -- like high ranking uniformed lawyers -- were excluded from the meetings. It is known that the CIA wanted legal opinions so that it could avoid claims of criminality. Cheney’s right wing counsel, David Addington, was writing opinions to which Gonzalez’ name was attached. Gonzales admits that in retrospect he agrees with the August 2002 memo as appropriate for that time, although somehow or other he also thinks it wrong now -- why the difference, he never says. (The answer almost surely must be that Gonzalez has no principled reason, but is merely a man of little or no principle (like John Kerry) who blows with the political wind and does whatever George wants in order to get ahead.) He says he is sickened and outraged by the pictures from Abu Ghraib, but somehow the washboardings and mock executions he heard about in meetings didn’t affect him. And like Bill Gates in the Microsoft case, and like witnesses prepped by their lawyers, he remembers nothing. He does want to renegotiate the Geneva Convention, but he had nothing to do with anything and can remember less. It is all Bybee’s and Yoo’s fault. Fall on your swords, guys. Take a bullet or three for Gonzo and George, guys. It’s all your fault. Alberto had nothing to do with any of it. Right. Tell me more. I was born yesterday.

But what about the August memo’s assertion that as Commander-in-Chief the President can override the law against torture? Was that position right or wrong? All Alberto will say is that he won’t say, since the President has said we will not use torture -- which, of course, we have been using. Even the new memo of December 31 refuses, for the same reason, to comment on whether the President can override the law in order to authorize torture. Why the reluctance on this score by Alberto and by the new memo? Well, the nearly certain answer is pretty obvious, isn’t it? -- although nobody, but nobody, wants to say it. We have been using torture, in Gitmo, in Iraq, and in undisclosed places in countries like Thailand and Pakistan. Alberto knows it and has countenanced it, George the Second knows it and has countenanced it, the Rummyhead knows it and has countenanced it, lots of top leaders know it and have countenanced it because we have been desperate to get information. But as Professor Anthony D’Amato of the Northwestern University Law School has pointed out, where would all these people wind up if the Legal Counsel’s office opined that the President, that George the Second, could not authorize torture in violation of domestic law. They might one day wind up in jail, that’s where. At least now they have the defense that George knew of it and allowed it (which lots of them could probably prove), notwithstanding phony statements or phony documents saying we do not use torture. And even beyond Professor D’Amato’s well taken point, is this: it is now well known, and has been said here before, that the reason government officials wanted the Bybee/Yoo memo in the first place was to cover themselves. That is, they wanted a covering legal opinion -- the way that tax and securities law cheats get covering legal opinions -- which will get them off the hook if they are ever threatened with, or face, prosecution. So neither Alberto nor any of the other torture mongers wants to say or wants there to be a DOJ memo saying that the President, as Commander-in-Chief, cannot order torture when the law says there shall not be torture.

There is, on the other side of the matter, a very good reason why some of us are worried about the possible use of the commander-in-chief power to order torture. It is not that torture can never be justified. Any reasonably good lawyer can imagine situations so desperate that torture might be justified, situations in which torture is even likely to work even though the more general unreliability of the information it obtains is one reason against it. The problem, however, is that once one begins to use the commander-in-chief power to justify overriding the law because the president and his people think an action is necessary, it is predictable on the basis of history that widespread destruction of liberty will usually be the ultimate result. Such destruction is the nature of any unfettered power. Already we are getting apparently true reports, I note, of our government conspiring with the Saudis to hold American citizens in Saudi jails where they are tortured, or of our government conspiring with other governments to kidnap foreign nationals (like North Korea did), take them to other nations, hold them incommunicado, and torture them because they are (sometimes wrongly) suspected of belonging to Al Qaeda. Adherence to the law is the only thing that can prevent this kind of stuff from happening. People who oppose an expansive commander-in-chief power do it in the name of protecting Americans, notwithstanding that the jingoes think that letting the President do whatever he wants under whatever power he wants is what should be done. If we are to permit torture, with all the downsides arising from doing so, it should be because Congress, after serious debate, sets the conditions under which it is allowable. As of now, Congress has not allowed it.

One wishes to add one other point about the new memo of December 31. That memo, it appears, was supposed to be issued about six months beforehand. It was held up because reactionary elements in the CIA, the Pentagon, the White House, and the Vice President’s office were trying to fight it off. Finally it got released in a transparent effort to help Gonzalez. When released, it was said to be authored by the current Legal Counsel in DOJ, Daniel Levin. But there was one report -- in The Wall Street Journal of December 31st -- which said that the memo was drafted by Jack Goldsmith and Daniel Levin. And the memo itself says questions about the now-replaced August 2002 memo were raised by "this Office" as well as others (it was after all, nationally and internationally scorned). Who in "this Office" raised the questions?
Now, Goldsmith has taken a rap here for writing a memo authorizing the transfer of prisoners out of Iraq, when he must have been aware that the purpose of such transfers was to ship them to places where they would be tortured. The pros and cons of this charge, which strikes me as well taken, needn’t be rehearsed now. But Goldsmith has refused to talk about the situation, except to say he had nothing to do with torture memos drafted in August 2002 and March 2003. And a correspondent who wished to remain anonymous but whom I know and respect has given the opinion that Goldsmith is a person of "the highest moral character." If The Wall Street Journal is right in saying Goldsmith worked on the new memo, this would lend credence to the possibility, partially adverted to here previously, that Goldsmith was against a permissive policy on torture, was doing what he could to confound those who favored it, and quit the DOJ because they were too powerful for him to have the desired effect. This would all be to his credit, if true.

But, as said, Goldsmith is not talking. He too is apparently taking a bullet for George, Gonzo, Cheney, Addington, Haynes and the rest of that crew of bad people. And this is too often the result of secrecy, regardless of whether the secrecy stems from claims of executive privilege, attorney-client privilege, lawyer-client confidentiality or what have you. Bad people use secrecy so that they won’t be hung out to dry and, instead, other people will take the fall for them. Jack, it’s time to speak up if you did have something to do with drafting and pushing through the replacement memo of December 31st.

Let me make two final, interrelated points about the Gonzalez hearing. One is that Republicans (and some Democrats too) kept saying how wonderful it is that Gonzalez rose from dire poverty to the position he holds today, viz, Specter’s comment about a Horatio Alger story. In fact, some of the media wrote that the Republicans wanted, and tried, to focus on this rather than have the hearings discuss what Gonzalez has done in the White House. Frankly speaking, this effort to whitewash the doing of evil is offensive. Lots of people have risen from dire poverty to significant economic and/or political positions, but have done it without abominable misdeeds. To try and whitewash this guy because he started out very poor is an insult to them. It is akin, at the other end of the economic spectrum, to not understanding, as many seem not to understand, that people despise Bush because he rose by connections and favors though he was a serial failure and is dumb. Lots of us were brought up to think that hard work and competence should be the road to success, not favoritism and/or bad conduct. To laud those who engage in and rise via the latter is, regardless of whether they started out rich or poor, offensive to those who play by the rules of honesty and competence. Perhaps, however, this view too is just a product of a working class background and a failure to adapt to or adopt the rules of the new America which surrounds us.

The interrelated point is that the Democrats say that they are going to vote for Gonzalez regardless of the serious questions being raised about what he has done. This has led Bob Herbert of The Times to say that "The Democrats have become the 98-pound weaklings of the 21st century." The Democrats just don’t get it. They do not understand that lots of us are looking for underlying attributes like honesty, competence, and concern for others. Call these values, if you will. Someone who really believes Gonzales has done bad things, as lots of Democrats appear to think -- and as the very conservative but often admirable Lindsey Graham also seems to think -- should display honesty by voting against this guy, rather than trying to lessen feared political damage by not opposing a Bushian choice. That is what would show integrity.

Moreover, Democrats say that, while they will vote for Gonzalez for Attorney General, they will use a tougher standard to judge him if and when he is a nominee for the Supreme Court. Of course, if he becomes a nominee for the high court, people will not insensibly say to these Democrats, "You voted for him as Attorney General despite accusations of torture mongering. And he has done nothing wrong since he became Attorney General. In fact he has a fine record as Attorney General. So how can you vote against him now?" In short, by voting for this torture monger to be Attorney General, Democrats are likely to make it far harder for themselves to vote against him as a nominee for the high court. All the rags to riches stuff which even the Democrats have been spewing will still be there, plus there will be the failure to oppose him for Attorney General despite torture mongering, plus there will be claims that he did a fine job as Attorney General. Far from setting up the possibility of defeating him for the Supreme Court or warding off a nomination of Gonzalez for the high court, the Democrats are helping to dig their own grave. And do they think that Karl Rove is not smart enough to realize all of this? Would they think (if they thought about it, which they won’t) that some unknown, non-politician dean from Massachusetts might realize this, but Karl Rove won’t? All of this Senate stylistic stuff – oh, you are so wonderful, Judge Gonzalez; you are such a marvelous rags to riches story; etc., etc. -- combined with the lack of sufficient integrity to vote against him for Attorney General, will come back to haunt the Democrats. Karl Rove will see to that. In fact, he probably figured it out a long time ago.

Especially because this writer often is extremely critical of the media, I wish to say that the performance of some mainstream media people in the run-up to, and after, the Gonzalez hearing has been first rate, terrific. These reporters, columnists and editorial writers have revealed the facts and called it like it is. They have excoriated an administration in which hypocrisy and bad conduct are king and which does and/or says one bad thing after another. Mostly the excoriation relates directly to the Gonzalez matter, but sometimes it related to the nature of the current administration generally, and I include it because of its timing (i.e., because it was coterminous with the Gonzalez matter). Also, the writing I speak of has sometimes been quite stylish as well as powerful.

One would like to describe what each of the writers has said, one would like to do a brief precis of each piece so that the reader might get some sense of how good a lot of the work has been. The temptation must be resisted in the interests of time. Let me, then, simply list some of the fine work that has been done. A reader can then access it on line if he or she is interested in reading some really good work. There are:

• An editorial page analysis by Andrew Sullivan in The New York Times on December 31, 2004, at p. A22, entitled Legal Breach: The Government’s Attorneys and Abu Ghraib.
• A Sunday column by Frank Rich in The New York Times of January 2, 2005, at Section 2, p. 1, entitled Washington’s New Year War Cry: Party On!.
• An article by R. Jeffrey Smith and Dan Eggen in The Washington Post of January 5, 2005, at p. A1, entitled Gonzalez Helped Set The Course for Detainees.
• An article by David Johnston and Neil Lewis in The New York Times of January 5, 2005, at p. A1, entitled Bush’s Counsel Sought Ruling About Torture.
• An article by Kate Zernike in The New York Times of January 6, 2005, at p. A1, entitled Newly Released Reports Show Early Concern on Prison Abuse.
• An op ed page column by Mark Danner in The New York Times of January 6, 2005, at p. A27, entitled We Are All Torturers Now.
• An op ed page column by Maureen Dowd in The New York Times of January 6, 2005, at p. A27, entitled Don’t Torture Yourself (That’s His Job).
• An editorial in The Washington Post of January 6, 2005, at p. A18, entitled The Gonzalez Record.
• An op ed page column by Derrick Jackson in The Boston Globe of January 7, 2005, at p. A13, entitled The Victims We Don’t Count.
• An article by Hannah Rosin in The Washington Post of January 7, 2005, at p. C01, entitled On The Hill; Where It’s Hot . . . or Not, with the subtitle Attorney General Nominee Doesn’t Break A Sweat in Senate.
• Various Letters to the Editor in The New York Times of January 8, 2005, at p. A30, under the heading Gonzalez and the Torture Question.*

*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Links to this post:

Create a Link

<< Home