Amidst the jubilation, calls to reinstate the rule of law, and speculation about replacements that have flooded the media in response to Attorney General Alberto Gonzales's recent resignation, I keep thinking of the old joke: How many psychologists does it take to change a light bulb? Answer: One ... but the light bulb has to want to change.
So it is with the Bush-Cheney administration's Justice Department. It can only be changed for the better if George W. Bush and Dick Cheney want such a change. And they most fervently do not — at least not if you construe the term "for the better" to mean returning the Department of Justice (DOJ) to its former status as an agency that strives to fairly and independently enforce the law on behalf of the people of the United States.
The truth is, the high-level decay and politicization of the DOJ that has been so starkly exposed in the past months did not begin with the arrival of Alberto Gonzales in 2005. It began with the arrival of Bush and Cheney in January of 2001. From the moment they moved into the White House, they set about to pervert the functions of the office of the attorney general to advance not only their own personal and political agendas, but also those of the Republican National Committee. To achieve that cynical aim, they elevated their inexperienced politicos to key positions at DOJ's main offices in Washington, DC and gave them free rein to ignore, undermine, overrule and mistreat career attorneys. Consequently, by the end of 2004, many of the most experienced DOJ attorneys had left. But they left quietly, so the public didn't pay much attention. Having quite successfully cleared the way for its political agenda at Main Justice, the administration could then move on to the politicization of US attorney offices around the country. This process — which began in 2005 and led to the much-publicized US attorney firings — was not the beginning of the chief executive's unprecedented injection of politics into the operation of the DOJ; it was actually the second phase of the project.
From day one, the Bush-Cheney administration has been engaged in an intentional waste of the DOJ — and every other agency in the executive branch — that is not going to stop as long as they remain in office, no matter who they choose to be the attorney general.
Those who doubt that sad conclusion need only take a brief look at the DOJ of 2001. So much shameful conduct has occurred at, and been sanctioned by, the leadership of the nation's top law enforcement agency over the past six years that we can barely remember it all. But a glance in the rear-view mirror at the first year of the Bush-Cheney administration's DOJ should suffice to refresh our recollections. The first sign of the impending deterioration was the president's choice of attorney general.
Indeed, short of locking the doors to the building, the Bush-Cheney administration could hardly have demonstrated its disdain for the traditional work of DOJ lawyers more powerfully than it did with the nomination of former Missouri Senator John Ashcroft to be attorney general. In 2007, now that we know of his sickbed-refusal to reauthorize the warrantless wiretapping program, Ashcroft may look like a heroic champion of civil rights. In 2001, however, it was obvious to many the only rights Ashcroft was willing to champion were those of the far right. As Vermont Senator Patrick Leahy put it on January 29, 2001,
There is no appointed position within the Federal Government that can affect more lives in more ways than the Attorney General, and no position in the cabinet more vulnerable to politicization by one who puts ideology and politics above the law. We all look to the Attorney General to ensure even-handed law enforcement; equal justice for all; protection of our basic constitutional rights to privacy ... to safeguard our marketplace from predatory and monopolistic activities and to protect our air, water and environment.
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Ashcroft was the wrong man for this task, but nevertheless the right man for Bush. The darling of the Christian right and the National Rifle Association (NRA) as well as big business, anti-environment and anti-civil rights lobbies, he could be expected to carry out the duties of attorney general with due attention to the wishes of the president's conservative base.
Ashcroft did not disappoint. Almost immediately, he delighted Christian conservatives by gathering his subordinates together on federal property to participate in daily Pentecostal Christian prayer meetings. (Hey, they were voluntary meetings and anyone — Jew, Muslim, Pagan, Buddhist, Atheist, Wiccan — could participate, so what is the big deal?) In May 2001, he turned to another top priority: undermining gun prosecutions by formally advising the NRA that the DOJ would no longer take the position that the Second Amendment does not guarantee private citizens the right to bear arms, a 180 degree shift from longstanding DOJ policy.
Using the DOJ to repay the gun lobby that had donated over $1 million to the Bush-Cheney 2000 campaign was a trifle, however, compared to the decision to pull the plug on over 50 environmental cases against air-polluting power plants and refineries that had also, coincidentally, been huge donors to the Republican party in the 2000 election. In late June of 2001, the DOJ not only suspended its lawsuits against the energy companies, but advised them to abandon the pollution-control upgrades they were implementing as part of pending settlement agreements. This, as we now know, was merely the beginning of the administration's use of both the Ashcroft and Gonzales DOJ to benefit big business at the expense of the environment — an assault that is now in its sixth year.
Also in its sixth year is the assault on civil rights and liberties Bush and Cheney set in motion in 2001 — with the wholehearted cooperation of Ashcroft and so many others in the highest levels of the very agency specifically designated to uphold those rights and liberties.
It was, for example, the head of the DOJ's criminal division — the current Director of Homeland Security Michael Chertoff — who, in the fall of 2001, supervised the round-up of over 1000 Arab and Muslim non-citizens within the United States, holding them as "material witnesses" to offenses that were never quite specified. Although the men were imprisoned for months, often in solitary confinement, Chertoff refused to allow them to have lawyers, because — he argued without apparent irony — they were not charged with a crime. In 2003, the DOJ's inspector general called this draconian mass detention "indiscriminate and haphazard." Ashcroft's response to that charge? He would "make no apology."
It was Ashcroft who, in 2001, first lobbied Congress for broad expansion of government surveillance powers in the form of the Patriot Act, which included changes to the Foreign Intelligence Surveillance Act. What we did not know, however, was at the same time the attorney general and his minions were secretly acquiescing to widespread violations of that same law. Because the administration has slithered away from oversight and accountability at every turn, we still — six years later — know almost nothing about the executive branch's illegal surveillance.
Of all the lawlessness sanctioned and nurtured by the DOJ since Bush and Cheney took office, none is more horrifying than the treatment of the thousands who have been detained in the name of the undeclared "War on Terror." As we now know, on September 25, 2001, Attorney General Ashcroft's subordinate John Yoo penned a memo which informed the president that he had virtually unlimited authority to take retaliatory or preventive action against "terrorists."
Beginning in October of 2001 — with the door to any and all forms of illegal government conduct having been thrown open by the DOJ's Office of Legal Counsel — Ashcroft, Chertoff and many other DOJ officials watched and offered counsel to advance a program of mass detentions in Afghanistan and elsewhere that were, more often than not, based on unreliable information and even mere whim. They acquiesced in the torture of these prisoners by both our own and foreign governments, attempting to justify this unspeakable conduct with the now-withdrawn memo John Yoo submitted to then White House Counsel Alberto Gonzales in August 2002. (That our highest government officials felt the need to commission such a memo and allowed it to remain extant until 2004 is proof enough of widespread guilty knowledge on the part of both White House and DOJ officials.)
Nearly six years after they were first captured on foreign soil in the fall of 2001, 375 of these men are still imprisoned by the United States at Guantanamo Bay — and they have never had a hearing.
Were it not for the attorneys at the Center for Constitutional Rights (CCR), the public might not even know about these detainees. As it is, we know precious little, but far more than we need to know to conclude they have been abused and illegally detained by our own government. Since 2002, CCR has been pursuing a tortuous, and often devastatingly frustrating, course of litigation on their behalf. During that time — over five years — they have, as CCR points out in its recently-filed Supreme Court brief in Al Odah v. United States, have been making an almost absurdly modest request. They would like to be given "a fair and impartial hearing at which they have the opportunity to confront and rebut whatever accusations there are against them and to present evidence of their own to establish their innocence."
To make matters worse, not only have these prisoners been denied counsel, a hearing and an opportunity to make their case, most of them have never even been told precisely what it is they are accused of having done wrong. Although the administration cites classified-information concerns as the reason for its failure to proffer specific charges, the real explanation may be there are no charges to bring, particularized or otherwise: As a former Guantanamo commander has conceded, we have been detaining people who are not actually "the right folks."
Given that these admittedly "wrong folks" have been in prison now for over half a decade, it is obvious that their illegal detention does not stem solely from injustices wrought by Alberto Gonzales or, for that matter, by John Ashcroft. The detainees at Guantanamo have been mistreated and wrongfully held without any means to challenge their detention because that is what Bush and Cheney directed — and their appointees at the DOJ were more than willing to oblige by devising spurious rationales to support that position. During Ashcroft's tenure, now-Acting Attorney General Paul Clement was the voice of DOJ, arguing — all the way to the Supreme Court — that the prisoners had no right to habeas corpus because they were enemy combatants held outside the United States, even though Guantanamo is controlled exclusively by the United States. (As CCR notes in its brief, even iguanas on the base are protected by US laws.) Not surprisingly, in Rasul v. Bush, the Court smacked down the government's argument and ordered that the detainees be provided hearings.
Barely missing a beat, the administration — with Alberto Gonzales now at the helm of Justice- simply began seeking new legislation to circumvent the Supreme Court ruling. With the help of DOJ, they got it, in the form of the Military Commissions Act passed in the fall of 2006, a shameful capitulation by Congress that sent the Guantanamo prisoners back to square one with the filing of lawsuits to challenge the constitutionality of this hastily-passed law. The cases, consolidated under the name of Al Odah v. United States, had inconsistent results in the lower courts, but on June 29, the Supreme Court reversed a prior order and agreed to hear them. Oral arguments are tentatively scheduled for December 5, 2007.
It is now, of course, September 2007 and we have had more than enough time to see the results of the administration's misappropriation of the DOJ which began in 2001: Environmental cases abandoned or settled in favor of polluters, the Voting Rights section used to keep people from voting, the Civil Rights Section suing on behalf of white males, warrantless wiretapping in blatant violation of FISA. We are all affected by these travesties and any attorney general nominee should be asked about them.
But the first topic of inquiry should be the prisoners at Guantanamo Bay. The urgency of their appeal — both from the point of view of the prisoners and the Supreme Court's schedule (the government's reply brief is due October 9) — presents a perfect opportunity to find out just how many new attorneys general it would actually take to change the Bush-Cheney DOJ. I fear the answer is none; Bush and Cheney do not want it to be changed.
An expeditious way to test that proposition with regard to a particular nominee is to ask about the Al Odah case. Given that the legal issues are so clear-cut — and the administration's refusal to provide a fair hearing to admittedly innocent men who have been incarcerated for six years is so morally repugnant to anyone who is truly committed to the rule of law — we need only ask one question to determine whether a putative attorney general has the integrity and independence to effect a positive change in the Bush-Cheney DOJ. This is it: "Will you insist the US government confess error in the Al Odah case?" The response will tell us all we need to know.
Elizabeth de la Vega is a former federal prosecutor with more than 20 years of experience. During her tenure, she was a member of the Organized Crime Strike Force and chief of the San Jose Branch of the US attorney's office for the Northern District of California. Her pieces have appeared in The Nation, the Los Angeles Times and Salon. She writes regularly for TomDispatch.com. The author of United States v. George W. Bush et al, she may be contacted at ElizabethdelaVega@Verizon.net.
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