Now That Attorney General Gonzales Has Resigned, It's Time to Focus Very Closely on the Administration's War-on-Terror Policies

By EDWARD LAZARUS

Thursday, Aug. 30, 2007

It's been inevitable for quite a while, and now it has finally happened: Attorney General Alberto Gonzales has abandoned his bedraggled rear-guard action and resigned his post. It is not hard to sum up Gonzales's legacy at the Department of Justice: He leaves behind a shattered agency - a corps of loyal career public servants who were forced to choose between opting out of their life's work, and watching helplessly as Gonzales (and other top officials) consistently chose loyalty to the President and partisan advantage over professionalism and even-handed enforcement of the law.

Despite the efforts of many to throw him a lifeline, Gonzales sunk himself with Congressional testimony so woefully lacking in candor and coherence that even many Republicans were desperate to see him go. Gonzales will be remembered as a corner-cutter on truth, strikingly incompetent with respect to the vital core duties of his position, and an Attorney General of the United States with a tenuous and slanted grasp of constitutional law.

In the wake of Gonzales's departure, the investigations will no doubt go on, probing further into the infamous U.S. Attorney firings and into then-White House Counsel Gonzales's dark-of-night hospital visit designed to coerce the deathly ill then-Attorney General John Ashcroft to override widespread departmental resistance to the President's proposed secret surveillance programs.

Now that Gonzales has joined the merry ranks of Bushies abruptly deciding to attend more closely to family concerns, the urgent question for the Administration, Congress, and the country at large is: what next? In this column, I'll argue that the first priority should be to focus on the Administration's war-on-terror policies.

There are three obvious items on the agenda: the pending investigations, the goal of re-invigorating DOJ, and the debate over the questionable legal theories underlying the Bush Administration's approach to the war on terror (policies that DOJ, under both Ashcroft and Gonzales, rationalized and implemented). All of these issues are important, but none, in my view, is as important at this particular moment than the last.

Other Items on the Agenda Are Important, But Less So than War-on-Terror Policies

With respect to the investigations, it would of course be nice to know who lied about what and when, as well as which of the eight U.S. Attorneys really got the axe for refusing to do the Administration's partisan bidding. We could also use a clear-eyed assessment of just how much this Administration corrupted the civil service ranks of DOJ with ideological appointees, many of them apparently second-rate.

In addition to ferreting out more of the truth, further exploring these matters will likely shed some light on the proper relationship between the Department of Justice and the White House. If nothing else, we have gotten, and will continue to get, a good look at what this relationship should not look like - and that is an important lesson in itself.

But the investigations into DOJ probably have already made their most important contribution: They have helped rid us of a terrible Attorney General. And by their nature, investigations don't fix anything. They are inherently retrospective - and, in this case, retrospective regarding two protagonists, Gonzales and Karl Rove, who have left the government. Accordingly, while the investigations remain significant, they cannot be the first or even the second priority among the three, given the central role DOJ plays in so many vital areas.

Revitalizing DOJ is, of course, imperative. The day-to-day workings of the department have been hit hard by attrition and a distrust of leadership. Whoever takes over as AG will face a daunting challenge: to rebuild morale and restore a sense of mission within the agency.

To this end, pundits of pretty much every stripe are calling for Bush to name a person with managerial talent and other qualities of real leadership - someone like Ed Levi, a revered figure who took over at Justice in the wake of Watergate. It would certainly be nice if Bush were to select such a person. Whoever the candidate may be, he or she will have one rather ironic advantage: Because almost every top job at DOJ is vacant (including the number 2 and number 3 positions), the next AG can install a fresh team, to start the Herculean task of rebuilding relatively unencumbered by the recent past.

In my view, however, the importance of finding the next Ed Levi is tempered by one overriding consideration. Although I think pretty much any selection will be an improvement on Gonzales, I have my doubts that the President can find a really towering figure to lead DOJ for the last 15 months of a deeply troubled lame-duck Administration.

The people currently being discussed do not fill the bill. Michael Chertoff (head of Homeland Security), Chris Cox (head of the SEC), Ted Olson (former Solicitor General), and Larry Thompson (former Deputy AG) are all known quantities; none is likely to suddenly emerge as an iconic leader. They share one main qualification -- a reasonable chance of being confirmed by a skeptical Democratic Senate.

Frankly, I can't think of who the contemporary Ed Levi would be - assuming, of course, that the pool is limited to people with legal views generally compatible with Bush's own. Moreover, even if such a person exists (and my knowledge of who might qualify is anything but encyclopedic), that person would have to think twice before subjecting him- or herself to the torture chamber of confirmation and the toxic environment in Washington, given the likelihood of having only about a year to run the Department.

In short, I think the person most likely to make real progress towards fixing DOJ will be the AG named after the 2008 election, not the AG to be named now. The person named now will be a caretaker - with some luck, a pretty good one, but a caretaker nonetheless.

The Key Issue Now: The Balance Between Liberty and Security

For this reason, I think the first priority, in selecting a new AG, should be to use the occasion to engage the country in a meaningful discussion about how our legal ideals can, and should, be reconciled with the need to improve our national security.

Under Gonzales, as well under as his predecessor Ashcroft, DOJ has played a central role in justifying three crucially important post-9/11 developments: First, there is the Administration's claims to unchecked and uncheckable Executive authority to run the war on terror. Second, there is the vast expansion of the apparatus - human and technological - through which we are waging the war on terror. Third, there is the increased secrecy in which the government cloaks its actions.

The developments have played out on many fronts, often in interconnected ways: As the Executive Branch claims unilateral authority to deal with detained terrorism suspects, it also uses its power to determine state secrets to frustrate challenges to this very claim of authority. Secrecy also enhances the Adminstration's power to wiretap and data-mine domestically without judicial oversight in connection with terrorism investigations. The government has assembled a growing number of special forces, including what appear to be private mercenary groups, operating around the globe, apparently beyond the realm of congressional oversight or other forms of accountability; their operations, too, of course are secret. Based on its claim to be above the law, the Executive Branch offers scarce assurance that these entities observe laws prohibiting torture or otherwise comport with the legal standards we claim to observe, including basic prohibitions such as that against torture. Meanwhile, the President and Vice-President, with DOJ backing, purport to exempt themselves from open records laws and other measures aimed at creating greater governmental accountability and transparency.

As a nation, we may decide that, in the end, we favor many of the antiterrorism measures currently at issue. We may even decide, though I hope we do not, that the Constitution allows the Executive Branch to undertake these measures without judicial or congressional oversight - a checking function previously deemed indispensable to the exercise of any meaningful power in our system of government. But it would be especially unfortunate to permit the creeping growth of the national-security state to occur unreflectively and by inertia - as seems to be largely the case now.

In recent times, well-publicized confirmation hearings have been among the very few occasions in which we engage in a meaningful national debate over our fundamental constitutional values. The confirmation hearing for a new Attorney General could provide an ideal occasion for just such a vital national discussion about what we really care about - and why. And to me, engaging in this discourse ought to be our highest post-Gonzales priority.

For this reason, I hope the rumors are true that Bush is seriously considering naming Homeland Security Chief Michael Chertoff to replace Gonzales. This is not because I necessarily think Chertoff is the ideal candidate. Granted, he has some fine qualifications, including his service as a federal prosecutor and judge. On the other side of the ledger, he did a lousy job in the aftermath of Katrina.

To me, the principal virtue of having Bush nominate Chertoff is simply that his nomination - because of the job he now holds - is the most likely to provoke an informed debate about how this nation wants to reconcile its commitment to democracy and the rule of law with the exigencies of keeping our society safe.

We kick these issues around. But I'm not sure we ever really grapple with them. Now would be an excellent time to start.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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